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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#s and 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#s is 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.



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 in Ra%#iza &s. 'radfor d -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 country<s faith, which this #ourt

should not !e the last to keep and uphold.3 -=mphasis supplied 'e have said this in a case

where $ilipino citi>ens were under confinement, and we can say no less in a case where the person confined is an enemy charged with the most heinous atrocities committed against the

American and $ilipino peoples.

True that the rule was made applica!le in time of war, and there is a conflict of opinion as to

whether war has already terminated. 'ar is not ended simply !ecause hostilities have ceased.

After cessation of armed hostilities, incident of war may remain pending which should !edisposed of as in time of war. 3An important incident to a conduct of a war is the adoption of

measure !y the military command not only to repel and defeat the enemies !ut to sei>e 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#s the 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#s must !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<s representative in the present case is none other than the #ommander in #hief of the *nited )tates Army in the acific.

According to the Cegulations &overning the Trial of the 'ar #riminals in the acific, attached as

=hi!it $ to the petition, the 3trial of persons, units and organi>ations accused as a war criminalswill !e the "ilitary #ommissions to !e convened !y or under the authority of the #ommander in



#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. - Ex parte ?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 !e punished !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



$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 Japan !ecause of atrocities committed !y the Japanese troops against)paniards in the hilippines. Apparently, therefore, )pain has ceased to !e the protecting power

of Japan.

And, lastly, it is alleged that the rules of procedure and evidence !eing followed !y the "ilitary

#ommission in the admission of allegedly immaterial or hearsay evidence, cannot divest the

commission of its /urisdiction and cannot !e reviewed in a petition for the $abeas "orp#s. -07Am. Jur., 015+ #ollins &s. "c(onald, 075 *. ). 41;+ ;; %aw. ed., ;60+ 40 )up. #t., 20;.

$or all foregoing, petition is here!y dismissed without costs.la*p$i+.net

aranilla, eria, De oya, -ablo, Hilado, 'engzon, and 'riones, ., "on"#r. -aras, ., "on"#rs in t$e res#lt.

Se"r"(e O%#%o#)

O/ATA, J., concurring and dissenting

I concur in the dismissal of the petition for $abeas "orp#s and prohi!ition on the ground that the

"ilitary #ommission trying the petitioner has !een legally constituted, and that such tri!unal has

/urisdiction to try and punish the petitioner for offenses against the law of war. - Ex parte ?uirin,21 *.). 1+ ;2 )up. #t., 0.

I dissent, however, from the portion of the opinion of the #ourt which cities and applies herein

its decision in the case Ra%#iza &s. 'radford -pp. 7:, ;1, ante , to the effect that an attempt of

our civil court to eercise /urisdiction over the *nited )tates Army would considered as aviolation of this country<s faith. The decision of Ca9ui>a case, from which I dissented, was !ased

mainly of the case of #oleman &s. Tennessee -6 *. )., 7:6, in which was mentioned merely !y



way of argument the rule of international law to effect that a foreign army, permitted to march

through a friendly country to !e stationed in it, !y permission of its government or sovereign, is

eempt from the civil and criminal /urisdiction of the place. After reviewing the facts and theruling of the court in the #oleman case, I said in my dissenting opinion in the Ca9ui>a case the

following

. . . Thus it is clear that the rule of international law a!ove mentioned formed no part of

the holding of the court in the said case.

8either can such rule of international law of itself !e applica!le to the relation !etween

the hilippines and the *nited )tates, for the reason that the former is still under the

sovereign of the latter. The *nited )tates Army is not foreign to the hilippines. It is herenot by per!ission or in&itation of the hilippine &overnment !ut by rig$t of so&ereignty

of the *nited )tates over the hilippines. It has the same right to !e here as it has to !e in

Bawaii or #alifornia. The *nited )tates has the same o!ligation to defend and protect the

hilippines, as it has to defend and protect Bawaii or #alifornia, from foreign invasion.

The citi>ens of the hilippines owe the same allegiance to the *nited )tates of theAmerica as the citi>ens of any territory or )tates of the *nion.

That the case of #oleman &s. Tennessee was erroneously invoked and applied !y this #ourt in the

case of Ra%#iza &s. 'radford , was admitted !y "r. 'olfson, the attorney for %ieutenant #olonel@radford, who, notwithstanding the /udgment in favor of his client, moved this #ourt to modify

the ma/ority opinion 3!y eliminating all reference to the case of #oleman &s. Tennessee -6 *.).

7:6. !ecause, as well pointed out in !oth dissenting opinions, said case has no applicationwhatever to the case at !ar.3 .

The rule of international law mentioned in the #oleman case and erroneously applied !y analogy

in the Ca9ui>a case, has likewise no application whatever to the case at !ar. A mistake whenrepeated only !ecomes a !lunder.

R+!TO, J., concurring and dissenting

1. $A#T) I8 TBI) #A)=

etitioner prays that a writ of $abeas "orp#s !e issued directed to respondent %t. &en. 'ilhelm

(. )tyer, #ommanding &eneral, *nited Army $orces, 'estern acific, commanding him to

produce the !ody of the petitioner !efore this #ourt and that 3he !e ordered returned to the statusof an internee as a prisoner of war in conformity with the provision of article 6 of the &eneva

#onvention of July 0, 1606, relative to the treatment of prisoners of war and of paragraph 50 ofthe Cules of %and 'arfare, $. ". 0D1:, *nited )tates 'ar (epartment, and that a writ of prohi!ition !e issued !y this #ourt prohi!iting the respondent from proceeding with the trial, and

that the petitioner !e discharged from the offenses and confinement aforesaid.3

rior to )eptem!er 2, 1647, petitioner was the commanding general of the 14th Army &roup of

the Imperial Japanese Army in the hilippines. En said date, he surrendered to the *nited )tatesand was interned in 8ew @ili!id rison, in "untinlupa, in conformity with the provision of



article 6 of the &eneva #onvention of July 0, 1606, relative to the treatment of prisoners of war,

and of paragraph 50 of the Cules of %and 'arfare of the *nited )tates 'ar (epartment.

En Ecto!er 0, 1647, respondent caused to !e served on petitioner a charge for violation of thelaws of war, signed !y #olonel Alva #. #arpenter, wherein it is alleged that !etween 6 Ecto!er,

1644, and 0 )eptem!er, 1647, petitioner 3while commander of the armed forces of Japan at warwith the *nited )tates and its allies, unlawfully disregarded and failed it discharge his duty as

commander to control the operations of the mem!ers of his command, permitting them tocommit !rutal atrocities and other high crimes against the people of the *nited )tates and its

allies and dependencies, particularly the hilippines.3 Thereafter petitioner was removed from

the status of the prisoner of war and was placed in confinement as an accused war criminal and is presently confined in the custody of respondent at the residence of the *nited )tates Bigh

#ommissioner of the hilippines in "anila.

En Ecto!er 1, 1647, !y command of respondent and pursuant to authority contained in a letter

from the &eneral Bead9uarters, *nited )tates Army $orce, 'estern acific, dated )eptem!er 04,

1647, a "ilitary #ommission was appointed to try petitioner. At the same time several officerswere designated to conduct the prosecution and several others to act as defense counsel.

The commission was instructed to follow the provisions of the letter of )eptem!er 04, 1647, and

was empowered to 3make such rules for the conduct of the proceedings as it shall deemnecessary for a full and fair trial of the person !efore it. )uch evidence shall !e admitted as

would, in the opinion of the president of the commission, have pro!ative value to a reasona!le

man and is relevant and material to the charges !efore the commission. The concurrence of atleast twoDthirds of the mem!ers of the commission present shall !e necessary for a conviction or

sentence.3

)aid letter -=hi!it & addressed to respondent !y @rigadier &eneral @. ". $itch, 3!y commandof &eneral "acArthur,3 empowers respondent 3to appoint "ilitary #ommissions for the trial ofsuch persons accused of war crimes as may hereafter !e designated !y this Bead9uarters,3 with

the instructions that 3all the records of trial including /udgment or sentence and the action of the

appointing authority will !e forwarded to this Bead9uarters. *nless otherwise directed, theeecution of /udgment or sentence in all cases will !e withheld pending the action of the

#ommander in #hief.

En the same date 3!y #ommand of &eneral "acArthur3 -=hi!it B, respondent was instructed

to proceed immediately with the trial of &eneral Tomoyuki Yamashita for the charge served on petitioner on Ecto!er 0, 1647 -=hi!it @.

*pon arraignment on Ecto!er 5, 1647, !y the a!ove mentioned "ilitary #ommission, petitioner

entered a plea of not guilty. En the same date the prosecution filed a !ill of particulars -=hi!it

1 with ;4 items of crimes, and on Ecto!er 06, 1647, a supplemental !ill of particulars -=hi!itJ with many other additional items, adding up to 102, of the specified crimes imputed to

petitioner.



En Ecto!er 16, 1647, petitioner<s defense filed a motion to dismiss the case !efore the "ilitary

#ommission for the reasons that the charge, as supplemented !y the !ills of particulars, 3fails to

state a violation of the laws of war !y the accused, and that the commission has no /urisdiction totry this cause.3 The motion was denied on Ecto!er 06.

En said day, which was the first day of trial, the prosecution offered in evidence an affidavit of 8aukata *tsunomia -=hi!it " eecuted on Ecto!er 1, 1647, and su!scri!ed and sworn to

!efore #aptain Jerome Cichard on Ecto!er 00, 1647. The affidavit was made in Japanesethrough interpreter Tadashi Ya!i. The defense o!/ected to the admission of said affidavit,

invoking to said effect article 07 of the Articles of 'ar prohi!iting the introduction of

depositions !y the prosecution in a capital case in proceedings !efore a court martial or a"ilitary #ommission. -=hi!it % and 8.

Again on the same first day of trial, hearsay evidence was offered, defense counsel o!/ected, !ut

the o!/ection was again overruled. -=hi!its E and . The defense counsel alleged then that the

admission of hearsay evidence was violative of Article of 'ar 25, the manual for the courtD

martial, and the rules of evidence in criminal cases in the district courts of the *nited )tates. It isalleged !y petitioner that violations of legal rules of evidence have continued and are continuing

during the trial.

At the opening of the trial, 3the prosecution stated that no notice of impending trial had !eengiven the protecting power of the Japan !y the *nited )tates,3 such notice !eing re9uired !y

article ;: of the &eneva #onvention of July 0, 1606, and of paragraph 122 of the Cules of %and

'arfare, *nited )tates 'ar (epartment.

0. C="=(I=) CAY=( $EC

After alleging the a!oveDmentioned facts, petitioner maintains that his confinement and trial as awar criminal are illegal and in violation of articles 1 and 2 of the #onstitution of the *nited

)tates and the $ifth Amendment thereto, and a certain other portions of said #onstitution, andlaws of the *nited )tates, and article 2 of the #onstitution of the hilippines and certain other

portions of said #onstitution and laws of the hilippines Islands, and of certain provisions of the

&eneva #onvention of July 0, 1606, in that

-a There !eing no martial law, no "ilitary &overnment of occupied territory and no activehostilities in the hilippines at the time of the appoint the same, the commission is without

/urisdiction.

-b There !eing no charge of an offense against the laws of war !y the petitioner, the commissionis without /urisdiction.

-" The rules of procedure and evidence under which the "ilitary #ommission purports to !eacting deny the petitioner the fair trial guaranteed !y the #onstitution of the *nited )tates and

the #onstitution of the hilippines, and are in violation of Articles of 'ar 07 and 25 and of other

provisions of the laws of the *nited )tates and of the hilippines.



-d The respondent was granted to authority !y the #ommander in #hief, *nited )tates Army

$orces, 'estern acific, to appoint a military commission and For to try the petitioner in the

hilippine Islands, and the #ommission is, therefore, without /urisdiction to try this case.

-e The *nited, )tates, not having given notice of the impending trial to the protecting power of

Japan as made mandatory !y the &eneva #onvention of July 0, 1606, relative to the treatmentof prisoners of war, cannot properly and illegally try the petitioner on the charge.

2. C*%=) E$ I8T=C8ATIE8A% %A'

In the Cules of %and 'arfare, paragraph 122 -=hi!it ?, it is provided that 3at the opening of a /udicial proceeding directed against a prisoner of war the detaining power shall advise the

representative of the protecting power thereof as soon as possi!le, and always !efore the date set

for the opening of the trial,3 and 3at all events, at least three weeks !efore the opening of thetrial.3

Article GIII of the #onvention respecting the laws and customs of war on land, agreed in TheBague on July 06, 1566, provides 3risoners of war shall !e su!/ect to the laws, regulations, and

orders in force in the army of the )tate into whose hands they have fallen.

)ection 76 of &eneral Erders 8o. 1::, dated April 04, 15;2, containing instructions for the

government of armies of the *nited )tates in the field provides 3A prisoner of war remains

answera!le for his crimes committed against captor<s army or people, committed !efore he was

captured, and for which he has not !een punished !y his own authorities.3

)ecretary of )tate (aniel 'e!ster, in a communication addressed to "r. Thompson, "inister to

"eico, on April 7, 1540, said 3The law of the war for!ids the wounding, killing, impressment

into the troops of the country or the enslaving or otherwise maltreating of prisoners of war,unless they have !een guilty of some grave crime+ and from the o!ligation of this law nocivili>ed state can discharged itself.3

4. I8 A8#I=8T &C==#= A8( CE"=

"any of the !asic ideas which prevail today in the customs and usages of nations and !ecame

part of the international law emerged from the human mind centuries !efore the #hristian =ra.)uch is the idea that prisoners of war are entitled to humane treatment, that treasons of war

should !e discountenanced, and that !elligerents must a!stain from causing harm to nonD

com!atants.

En his return to eloponnesus in 40 @. #., Alci!iades touched at "ayonnesus and there slewmost of the captives taken on his voyage. According to Thucydides, the )amian eiles

remonstrated with him for putting to the death prisoners who have not !een in open hostilities

against him.

The same historian narrates that the year !efore, the "ytileneans of %es!os revolted fromAthens, !ut they were o!liged to capitulate in the following year to aches, who dispatched to



Athens over a thousand prisoners. Their disposal provoked discussion in the Athenian assem!ly.

At the instigation of #leon, the demagogue and the former opponent of ericles, an order was

issued to slaughter not only the men who arrived in Athens, !ut the entire made population of"ytilene that was of military age, and to enslave the women and children. The eecution of the

order was delayed, and another assem!ly was called. There an amendment of Theodotus was

carried, and the previous order countermanded.

The roman treatment of prisoners was less rigorous than the &reek. As stated !y Girgilius, 3theComan policy from the first was, on the one hand, debellare s#per bos, to su!due the proud and

arrogant peoples and, on the other, par"ellare s#bie"tes, to spare those who have su!mitted.3

3(ionisius states that a rule eisted in Come as early as the time of Comulus, which prohi!itedthe putting to death or enslaving on men captured in the con9uered cities, and also the

devastation of their territories+ it provided, on the contrary, for the sending of inha!itants, either

to take possession !y lot of the some part of the country, for making the con9uered cities Coman

colonies, and even for conceding to them some of the privileges Coman citi>enship.3 -hilipps

on the International %aw and #ustom of Ancient &reece and Come, Gol. II, p. 074.

In 4: @.#. the )partan commander #allicraditas took the town of "ethymna !y storm. In spite

of the persuasion of his allies, according to Henophon, he refused to the sell the Athenian

garrison and "ethymnaean citi>ens as slaves, declaring that so long as he eercises thecommand no &reek should ever !e reduced to slavery. &rote in his Bistory of &reece could not

refrain from praising this gesture of the "acedonian admiral !y saying 38o one who has

familiari>ed himself with the details of &reecian warfare can feel the full grandeur and su!limityof this proceeding . . . It is not merely that the prisoners were spared and set free . . . It is that this

particular act of generosity was performed in the name and for the recommendation of anD

Bellenic !rotherhood and anDBellenic independence for the foreigner . . . It is, lastly, that the

step was taken in resistance to the formal re9uisition on the part of his allies.3 -Bistory of&reece, Gol. GI p. 25.

hilip, the "acedonian ing, li!erated Athenian prisoners without ransom after the taking of

Elynthus in 245 @.#. and ten years later after the @attle of #haeronee, he dismissed the prisonerswith all their !aggage.

Henophon 9uotes Agesileus reminding his soldiers that 3prisoners were meant to !e kept, and not

criminals to !e punished.3 And ausanias narrates that when =paminondas, the greatest The!an

general, had gathered together, he nominally assigned to each of the men he captured there adifferent nationality, and set them all free, and there are cases where captives were dismissed on

parole to have chance of finding ransomers.

Among the &reeks much was done to humani>e warfare, and to remove from it the atrocities

which prevailed amongst the most of the nations anti9uity. The Eracle of (elfi refused to listento the "ilesians as they had not duly epiated the ecesses committed in their civil wars, though

it responded to all, others, even to !ar!arians, who consulted it. C/etait "o!!e

l/ex"o!!#ni"ation d# paganis!e , comments %eurent -Gol. II, p. 127.



oets, philosophers, artist, and men of intellectual distinction in general, even though they

!ecame invested with enemy character on the out!reak of war, were honored and respected. In

227 @.#. Aleander the &reat destroyed The!es, !ut he left indar<s house unin/ured andhonored the poet<s descendants. In ancient Bellas was already known the practice of neutrali>ing

cities and protecting them from the ravages of war. Temples, priest, and em!assies were

considered inviola!le. The right sanctuary was universally recogni>ed. "ercy was shown tosuppliant and helpless captives. )afeDconducts were granted and respected. @urial of dead was

permitted, and graves were unmolested. It was considered wrong to cut off or poison the enemy<s

water supply, or to make use of poisonous weapons. Treacherous strategems of whateverdescription were condemned as !eing contrary to civili>ed warfare. oets and philosophers,

orators and historians proclaimed humane doctrines. lato constructed his ideal repu!lic on the

!asis of what he conceived to !e perfect /ustice. Aristotle condemned the principle of retaliation

as !eing antagonistic to true /ustice. =uripides speaks of ecesses in war not only as acts ofintrinsic wickedness and transgression against universal law, !ut, indeed, as a suicidal folly on

the part of the offender. In one of his dramas he makes oseidon declare 3@ut foolish is the

mortal who lays waste cities, temple, and tom!s, the sanctuaries of the dead+ for having

consigned them to solitude, he is the one himself to perish afterwards.3

The mild and clement nature shown !y #aesar to many !elligerent peoples was recogni>ed even

!y his political enemy #icero to whom he wrote You are not mistaken a!out me . . . . 8othing is

far from my nature than cruelty . . . . I am told that some prisoners I set free sei>e the firstopportunity to take up arms against me+ nevertheless, I shall not renounce my policy.3

The Coman conduct Coman conduct far transcended in its civili>ed and humane character that of

the &erman leader Arminius, who is reported !y Tacitus to have !urned to death and otherwise

!ar!arously slain the centurions and tri!unes of the Garian legions, and nailed the skulls to trees.The sanction of Coman /urisprudence and the su!mission to the fundamental principles of /ustice

proved effective.

%ivy narrates that in 262 @.#. a certain school master of $alerii, who was in charge of the sons of the principal citi>ens of the town, took the opportunity to lead them to the Coman camp and

threw them into the power of the enemy. The roman general #amillus, indignant at this treason,

ordered the !oys to drive their master !ack to the town, and flog him all the way. There were, he

pointed, laws of war as well as of peace, and the Comans had learn to put them into practice notless /ustly than !ravely 3 s#nt et belli, si"#t pa"is, i#ra0 i#ste%#e, ea, non, !in#s, %#a! fortiter,

didi"i!#s gerere.3

'hen Adgantestrius made an offer to the Comans )enate to poison Arminius, according to

Tacitus, he was at once informed that it was not !y secret treachery !ut openly !y arms that theComans proceeded against their enemies. The same historian mentioned the fact that the Comans

generals re/ected the scheme, suggested !y the ing<s physician, of poisoning yrrhus -05: @.#.

and even delivered up the traitor, yrrhus, in return for the Coman generosity, allowed his prisoners to go to Come on parole in order to cele!rate the )aturnalia+ after which, they,

faithfully returned.



7. *8?*=8#BA@%= TBIC)TI8=)) E$ =C$=#TIE8. =TITIE8=C =8TIT%=( TE

%=&A% &*ACA8T==)

Impelled !y irrepressi!le endeavors aimed towards the ideal, !y the uncon9uera!le natural urgefor improvement, !y the un9uecha!le thirstiness of perfection in all orders of life, humanity has

!een struggling during the last two do>en centuries to develop an international law which couldanswer more and more faithfully the demands of right and /ustice as epressed in principles

which, weakly enunciated at first in the rudimentary /uristic sense of peoples of anti9uity, !y theinherent power of their universal appeal to human conscience, at last, were accepted, recogni>ed,

and consecrated !y all the civili>ed nations of the world.

*nder these principles, petitioner &eneral Tomoyuki Yamashita is entitled to !e accorded all theguarantees, protections, and defenses that all prisoners should have according to the customs and

usages, convention and treaties, /udicial decisions and eecutive pronouncements, and generally

accepted opinions of thinkers, legal philosophers and other epounders of /ust rules and

principles of international law. The seriousness or unfathoma!le gravity of a charges against him,

the unthinka!le magnitude of the wholesale murders, rapes, and destructions for which he iscalled to answer, the !eastly massacres and horrors !y which he was thrown from the pedestal of

military glory as the 3Tiger of "alaya3 into the !ottom of perversity of a human monster, mustnot !e taken into consideration, must all !e forgotten, in order that true /ustice may !e

administered in this case.

;. 'AC #CI"I8A%)

A%I&83J*)TI$Y3K3There is very little limitation on what a victorious nation can do with avan9uished )tate at the close of a war. Ene shudders to think what &ermany and Japan would do

if they were the victorsL @ut the common law of nations pro!a!ly re9uires a fair trial of offenders

against war law as a prere9uisite to punishment for alleged offenses+ and that &eneva#onvention so prescri!ed in the case of prisoners of war. @ut in the final analysis a decentrespect for the opinion of mankind and the /udgment of history is, in effect, a victorious

!elligerent<s main limitation on its treatment of the surrendered at the close of a war+ and this is

selfDimposed. The *nited 8ations are solemnly committed to the vindication and the rule of lawwhich has !een ruthlessly destroyed !y the 8a>is and Japanese.3 -)heldon &lueck, War

Cri!inals, p. ..

3$ormali>ed vengeance can !ring only ephemeral satisfaction, with every pro!a!ility of ultimate

regret+ !ut vindication of law through legal process may contri!ute su!stantially to the reDesta!lishment of order and decency in international relations.3 -Ceport of the )u!committee on

the Trial and unishment of 'ar #rimes, 2 Am. J. Int. %. M1642N, ;;2, ;;;.

3#enturies of civili>ation stretched !etween the summary slaying of the defeated in a war, and

the employment of familiar process and protections of /ustice according to law to air the etentand nature of individual guilt . . . and in the civili>ed administration of /ustice, even the most

loathsome criminal caught redhanded must !e given his day in court and an opportunity to

interpose such defenses as he may have.3 -)heldon &lueck, )d., p. 5.



. A%%I=( CE8E*8#="=8T)

According to a num!er of official pronouncements !y *nited 8ations< statesmen, the vast

ma/ority of offenders will !e tried in the domestic criminal or military tri!unals of the in/urednations. Thus on August 01, 1640, resident Coosevelt, in condemning the crimes committed

against the civil population in occupied lands, solemnly announced that 3the time will comewhen the criminals will have stand in courts of law in the very countries which they are now

oppressing, and to answer for their acts.3

En )eptem!er 5, 1640, "r. #hurchill promised that 3those who are guilty of the 8a>i crimes will

have to stand up !efore tri!unals in every land where the atrocities have !een committed.3

The "oscow (eclaration of 8ovem!er 1, 1642, sternly warned that 3at the time of granting of

any armistice to any government which may set up in &ermany, those &erman officers or menand mem!ers of the 8a>i party, who have !een responsi!le for or have taken a part -in the

various atrocities, massacres and eecutions will !e sent !ack to the countries in which their

a!omina!le deeds according to the laws of these li!erated countries and of the free governmentswhich will !e erected therein,3 and that 3the Allied owers will pursue them to the utmost ends

of the earth and will deliver them to the accusers in order that /ustice may !e done.3

The American mem!ers of commission on responsi!ilities appointed at the close of 'orld 'ar I,

had strenuously opposed the trial of &erman war criminals in an international high tri!unal onthe grounds that it was unprecedented and that there eisted no international statute or

convention making violations of the laws and customs of warfare international statute or

convention making violations of the laws and customs of warfare international crimes definingsuch offenses more specifically than the definitions to !e found in the prohi!itions of the

unwritten or written law of nations affiing a specific punishment to each crime, and giving

/urisdiction to a world court.

@ut (octor &lueck is of opinion that 3If the &ermans were to try an American soldier forviolating &erman statutes implementing the laws and custom of warfare in a newly esta!lished

type of military tri!unal, the accused would not !e heard to complain that he had !een set up

rovided the international tri!unal affords as ade9uate a trial as the accused would have had in

the court of any in/ured !elligerent he has no valid ground for complaint.3-. 11;..

3Ene of the arguments he continues advanced !y the American participants on the

commission on responsi!ility at the close of 'orld 'ar I, against the esta!lishment of an

international criminal tri!unal was that it was unprecedented. The atrocities committed !y Ais

powers led !y &ermany, even !y comparison with their !ehavior in 'orld 'ar I, areunprecedented. #an history show a !etter age than our own to initiate a series of muchDneeded

precedentsO $ew sym!ols of this new era which heralds the neigh!orly cooperation of civili>ed

people in the vindication of the laws of civili>ed nation would !e more impressive than aninternational criminal court, in which the plaintiff would !e the world community. . . . The

international criminal court would !e a more vivid sym!ol of the reign of /ustice of an

international plane than even the permanent court at The Bague has !een. In domestic polity, theadministration of criminal /ustice of the strongest pillar of government. The doing of an



international plane under international auspices is even more important. It is indispensa!le to the

survival, in the intercourse of nations, of the very traditions of law and /ustice. The !esmirching

of the prestige of international law is not the least of the evils perpetrated !y the Ais power led !y 8a>i &ermany. The peerless and efficient administration of /ustice in the case of Ais war

criminals is today indispensa!le as a token to the peoples of the world, a sign that crimes

committed !y one country<s su!/ect against the people of another mem!er of the family ofnations will !e relentlessly punished even though they run into huge num!ers, were committed

!y men in uniform, and are instigated !y a $uehrer endowed !y himself and his intoicated

followers with the attri!utes of a demigod.3 -age 15.

3Ade9uate law for use !y an international court now eist+ and its enforcement !y such a tri!unalwould violate no fundamental tenets of civili>ed nations. The law for an international tri!unal

can !e drawn from the rich reserviors of common and conventional law of nations and the

principles, doctrines and standards of criminal law that constitute the common denominator of allcivili>ed penal codes.

3The punishment to !e applied !y domestic military and civil courts depend upon local law and practice. Those to !e imposed !y the international tri!unal could !e !ased either upon the

punishments permitted !y the laws and customs or warfare or upon those provided for crimes ofsimilar nature and gravity !y the law of the accusing )tate, taking into account, also, where

necessary individual instances, the law of the defendants )tates.3 -age 151.

5. 8E )*CCI)=) TE =TITIE8=C

etitioner in this case cannot allege ignorance of the fact that the criminal acts alleged in thespecified charges against him are punisha!le !y law, not only in all civili>ed nations, !ut in his

own country.

)ince January 1, 1550, the Japanese &overnment had !een enforcing a #riminal #ode !ased on

the #ode of 8apoleon of 1511, prepared !y the $rench /urist ". @oissonade, said criminal codehaving !een superseded !y a new one on Ecto!er 1, 16:5.

*nder the last, arson may !e punished with death -article 1:5+ rape is heavily punished -articles

1;, 1 and 15+ and murder or homicide may !e punished with death or penal servitude for

life -article 1:6. These offenses and many others, punished !y our enal #ode, are known to theJapanese as crimes, which in Japanese is ts#!i.

$rom the %auterpacht edition -1644 of Eppenheim<s International %aw, Gol. II, pp. 47:D475, we

9uote

)=#. 071. In contradistinction to hostile acts of soldiers !y which the latter do not lose

their privilege of !eing treated as lawful mem!ers of armed forces, war crimes are suchhostile or other acts of soldiers or other individuals as may !e punished !y the enemy on

capture of the offenders. They include acts contrary to International %aw perpetrated in

violation of the law of the criminal<s own )tate, such as killing or plunder for satisfying private lust and gain, as well as criminal acts contrary to the laws of war committed !y



order and on !ehalf of the enemy )tate. To that etent the notion of war crimes is !ased

on the view that )tates and their organs are su!/ect to criminal responsi!ility under

International %aw.

)=#. 072. The fact that a rule of warfare has !een violated in pursuance of an order of the

!elligerent &overnment or of an individual !elligerent commander does not deprive theact in 9uestion of its character as a war crime+ neither does it, in principle, confer upon

the perpetrator immunity from punishment !y the in/ured !elligerent. A different viewhas occasionally !een adopted in military manuals and !y writers, !ut it is difficult to

regard it as epressing a sound legal principle. *ndou!tedly, a #ourt confronted with the

plea of superior orders adduced in /ustification of a war crime is !ound to take intoconsideration the fact that o!edience to military orders, not o!viously unlawful, is the

duty of every mem!er of the armed forces and that the latter cannot, in conditions of war

discipline, !e epected to weigh scrupulously the legal merits of the order received+ thatrules of warfare are often controversial+ and that an act otherwise amounting to a war

crime may have !een eecuted in o!edience to orders conceived as a measure of

reprisals. )uch circumstances are pro!a!ly in themselves sufficient to divest the act of thestigma of a crime. Also, the political authorities of the !elligerent will fre9uently incline

to take into consideration the danger of reprisals against their own nation which are likely

to follow as a measure of retaliation for punishment of war crime d#rante bello.

Bowever, su!/ect to these 9ualifications, the 9uestion is governed !y the ma/or principlesthat mem!ers of the armed forces are !ound to o!ey lawful orders only and that they

cannot therefore escape lia!ility if, in o!edience to a command, they commit acts !oth

violate unchallenged rules of warfare and outrage the general sentiment of humanity. Tolimit lia!ility to the person responsi!le for the order may fre9uently amount, in practice,

to concentrating responsi!ility on the head of the )tate whose accounta!ility, from the

point of view of !oth international and constitutional law, is controversial.

)=#. 07. All war crimes may !e punished with death, !ut !elligerents may, of course,inflict a more lenient punishment, or commute a sentence of death into a more lenient

penalty. If this !e done and imprisonment take the place of capital punishment, the

9uestion arises whether persons so imprisoned must !e released at the end of the war,although their term of imprisonment has not yet epired. )ome answer this 9uestion in

the affirmative, maintaining that it could never !e lawful to inflict a penalty etending

!eyond the duration of war. @ut is !elieved that the 9uestion has to !e answered in thenegative. If a !elligerent has a right to pronounce a sentence of a capital punishment, it is

o!vious that he may select more lenient penalty and carry it out even !eyond the duration

of the war. It would in no wise !e in interest of humanity to deny this right, for otherwise

!elligerents would !e tempted always to pronounce and carry out a sentence of capital punishment in the interest of selfDpreservation.

)=#. 07a. The right of !elligerent to punish, during the war, such war criminals are fall

into his hands is a wellDrecogni>ed principle of International %aw. It is a right of which he

may effectively avail himself after he has occupied all or part of enemy territory, and isthus in the position to sei>e war criminals who happen to !e there. Be may, as a condition

of the armistice, impose upon the authorities of the defeated )tate the duty to hand over



persons charged with having committed war crimes, regardless of whether such persons

are present in the territory actually occupied !y him or in the territory which, at the

successful end of hostilities, he is the position to occupy. $or in !oth cases the accusedare, in effect, in his power. And although normally the Treaty of eace !rings to an end

the right to prosecute war criminals, no rule of International %aw prevents the victorious

!elligerent from imposing upon the defeated )tate the duly, as one of the provisions ofthe armistice or the eace Treaty, to surrender for trial persons accused of war crimes. In

this, as in other matters, the will of the victor is the law of the Treaty. It is not to !e

epected that he will concede to the defeated )tate the corresponding right to punish anywar criminals of the victorious !elligerent. The resulting ine9uality is the unavoida!le

concomitant of the eisting imperfections of international organi>ation and of the

institution of war itself. @ut the victorious !elligerent may achieve a su!stantial

approimation to /ustice !y making full provision for a fair trial of the surrender enemynationals, and !y offering to try !efore his tri!unals such mem!ers of his own armed

forces are accused of war crimes. )uch conduct may go a long way towards reducing

su!stantially the ine9uality of treatment as !etween the victor and the van9uished.

The permissi!le acts of warfare are, !y the authority of long and common usage, strictly limited.

The treaties entered into !etween mem!ers of the family of nation are !ut specific definitions

and reinforcements of the general common law nations, the 3unwritten3 rules of warfare, which

for centuries have limited the method and manner of conducting wars. The common law ofnations, !y which all states are and must !e !ound, dictates that warfare shall !e carried on only

in accordance with !asic considerations of humanity and chivalry.

These matters are of course well known to the &erman and Japanese warlords and statement, as

well as to their henchmen. They will also !elieve the !rutal pronouncements of &erman military philosophy in such cynical hand!ooks for the guidance of officers as the Kriegsbra#"$ i!

La!bkrege in which, although &ermany had to o!serve the provisions of the Bague #onventionregulating warfare, their human tenets of international law are referred to as epressed generally3sentimentalism and fla!!y emotionalism 3 and are declared to !e 3in fundamental contradiction

with the nature of war and its o!/ects3+ and in which the &erman officer is sternly warned to

3guard himself against eaggerated humanitarian ideas.3

$rom (octor &lueck<s !ook we 9uote

If there was a domain to which "r. Justice Bolmes< illuminating dictum a!out a page of

history !eing worth a volume of logic is applica!le, it is that concern the war criminal<s

pro!lem -. 10. The law of nations has a long way to go !efore it can claim to !e

coherent and fied system. Its relevant tenets were develop under the presupposition themem!ers of the community of nations are governed !y selfDimposed restraints in

accordance with international law+ !ut the emergence of states with a national policy of

deli!erate lawlessness and with their invasion of <total war in the service of a program ofworld enslavement, compels a realistic modification of inade9uate doctrines and

principles of the law -.12. 8o!ody who has made a thorough study of the status of the

!ranch of law of nations involved can adhere to the view that it is anywhere near as welldeveloped or su!/ect to the same techni9ues of 3rigorous legal logic3 as the more



sophisticated !ranches of private law. -14. En )eptem!er 15, 1640, #hurchill assured

the Bouse of #ommons that 3those who are guilty of the na>i crimes will have to stand up

!efore tri!unals in very land where their atrocities have !een committed, in order that anindeli!le warning men given to future ages and that successive generations of men may

say, 3so perish all who do the like again.3

En January 07, 1616, the preliminary peace conference of 'orld 'ar 8o. I set upon a

commission of fifteen to in9uire into and report upon violations of international law chargea!leto &ermany and her allies. This commission recommended the setting up of a high tri!unals

which was to apply 3the principles of the law of nation as the result from the usages esta!lished

among civili>ed peoples, from the laws of humanity and from the dictates of pu!lic conscience.3*pon a finding of guilty, the court could sentence to such punishment as could !e imposed foe

the offense in 9uestion 3!y any court in any country represented on the tri!unal or in the country

of the convicted persons.3 The recommendation was not adopted. They were opposed !yAmerican and Japanese mem!ers. The Japanese mem!ers raised the !asic 9uestion, among

others, 3whether international law recogni>es a penal law as applica!le to those who are guilty.3

And it seemed to them 3important to consider the conse9uences which would !e created in thehistory of international law the prosecution for !reaches of the or customs of war enemy states

!efore a tri!unal constituted !y the opposite party,3 an argument re/ected at the treaty.

In the Treaty of Gersailles there were inserted the punitive articles 005, 006 and 02:. @y the

article 055 the &erman &overnment recogni>ed 3the right of the allied and associated powers to !ring !efore the military tri!unals persons accused of having committed acts in violation of the

laws to 3punishments laid down !y law.3 Article 066 provided for the trial of accused in military

tri!unals of the power against whose the nationals the alleged crimes were committed and the

specified that 3in every case the accused will !e entitled to name his own counsel.3

6. )E"= #E8#%*)IE8)

$rom all the foregoing, with regards to the petition for a writ of $abeas "orp#s, we conclude

-1 That petitioner Yamashita, if he is responsi!le for the acts imputed to him in the charges filed

!efore the "ilitary #ommission can properly and /ustly !e prosecuted and punished for them.

-0 That the fact that he has the #ommander in #hief of a !elligerent army does not eempt himfrom criminal lia!ility either for violations of international law or for the commission of crimes

defined and punisha!le under the laws of the country where committed.

-2 That his rights and privileges as a prisoners of war, under the &eneva #onvention, are notincompati!le with nor are violated !y his prosecution for the international and domestic crimescommitted !y him.

-4 That under the principles of natural law, all persons guilty of such crimes are amena!le to !e

arraigned !efore a court of the /ustice and, after a fair trial, if found guilty, should !ear the full

weight of the law.



-7 That petitioner Yamashita can !e prosecuted !efore the hilippine civil courts in the like

manner as a common criminal and the punished under the provisions of the hilippine enal

#ode.

-; That the military #ommission set up to try him possesses a /urisdiction which is concurrent

with that of the hilippine civil courts, and the choice of the competent tri!unal where he should !e tried, which a mere procedural technically, is left to the wise discretion of the officials in

charge of the prosecution.

- That in violation of the law of nations, the offended party is the people of the whole world,

and the case against petitioner could !e properly entitled as Bumanity &ers#s Tomoyuki

Yamashita,3 and no person in position to prosecute the violators can honesty shirk theresponsi!ility of relentlessly prosecuting them, lest he !e !randed with the stigma of complicity.

-5 That the a!sence of a codified International enal #ode or of a criminal law adopted !y the

comity of nations with specific penalties for specific and wellDdefined international crimes, is not

a !ar to the prosecution of war criminals, as all civili>ed nations have provided in their laws thenecessary punishment for war crimes which, for their very nature, cease to !e lawful acts of war,

and !ecome ordinary crimes with the etraordinary character of having !een committed in

connection with war, which should !e considered as an aggravating circumstance.

1:. TB= )*C="= #E*CT<) J*CI)(I#TIE8

'hether this #ourt has /urisdiction or not to take cogni>ance of this case is the first 9uestionraised herein.

'e !elieve that no dou!t should !e entertained that it has.

The petition pertains to a /udicial case, to a case wherein /ustice is to !e administered. It is a

criminal case initiated for the prosecution and punishment of Tomoyuki Yamashita, #ommander#hief of the Japanese Army in the hilippines, alleged as the greatest war criminal in the acific

and in the 'hole eastern hemisphere.

The case calls for the eercise of the /udicial power, one of the three government powers, firstly

defined !y Aristotle and upon which "ontes9uieu ela!orated later in his 3)pirit of the %aws.3

The /udicial power shall !e vested in one )upreme #ourt and in such inferior courts asmay !e esta!lished !y law. -Art. GIII, sec. 1, #onstitution of the hilippines.

@y this provision, the /udicial power is primarily vested in the )upreme #ourt, which eclusively

eercise the whole power. @ut it also authori>es the enactment of laws sharing the power toinferior courts, which include all other courts and tri!unals of all description, whether ordinary or

etraordinary, whether civil or criminal, whether industrial or military, whether designated as

3courts3 or simply as 3commissions.3



The #ongress shall the power to define, prescri!e, and apportion the /urisdiction of the

various courts, !ut may not deprive the )upreme #ourt of its original /urisdiction over

cases affecting am!assadors, other pu!lic ministers, and consuls, nor of its /urisdiction toreview, revise, reverse, modify, or affirm on appeal, "ertiorari, or writ of error, as the law

or the law of the rules of court may provide, final /udgments and decrees of inferior

courts in

-1 All cases in which the constitutionality or validity of any treaty, law, ordinance, oreecutive order or regulation is in 9uestion.

-0 All cases involving the legality of any ta, impost, assessment, or toll, or any penalty

imposed in relation thereto.

-2 All cases in which the /urisdiction in which of any trial court is in issue.

-4 All criminal cases in which the penalty imposed is death or life imprisonment.

-7 All cases in which an error or 9uestion of law in involved.

-Art. GIII, sec. 0, #onstitution of the hilippines.

$rom the foregoing it is evident that this )upreme #ourt has /urisdiction, which #ongress is

powerless to a!olish, to review, revise, reverse, modify, or affirm any and all actuations of

/udicial nature of the party respondent and the "ilitary #ommission !efore whom petitionerYamashita tried is for his life. In facts, this )upreme #ourt<s /urisdiction etends, not only to

courts and /udicial institutions, !ut to all persons, and agencies which form part of the whole

machinery of the administration of the /ustice, in so far as is necessary to the administration of

the /ustice.

'e have /urisdiction over the person of respondent %t. &en. 'ilhelm (. )tyer, not as to the

discharge of his military functions and duties, !ut in regards to his official acts in connection

with the administration of /ustice in the criminal case against Tomoyuki Yamashita, and that /urisdiction !ecame effective since 8ovem!er 12, 1647, his refusal to sign receipt for the

summons and the refusal of the su!ordinate officers in his officers in his office to accept said and

the summoning of said military commission.

8o one 9uestions our /urisdiction over the person of petitioner, he having voluntarily su!mittedhimself to it !y his petition.

'ith respect to the military commission trying him, under the 9uestions raised in the petition, it

is a proper party respondent and the petitioner should have included it as among the partyrespondents. @ut petitioner<s omission is /ust a technical error of no vital conse9uence, !ecause

under the /udicial rules, we can order the inclusion and the summoning of said military

commission.



The a!i"i "#riae want to us to !e cautious and slow in eercising /urisdiction in this case, in

view of the possi!ility that our orders might !e disregarded !y the military officers concerned.

The fear entertained !y the a!i"i "#riae might find some ground in the attitude of respondent&eneral )tyer, when the latter refused to sign receipt for the summons or to receive the papers

thereof.

The same warning has !een made in a case decided !y this )upreme #ourt several weeks ago. In

answer to the warning, we can do no !etter than to repeat what we said therein.

It has !een argued with energy !y those who oppose our issuing the order for the release

of the petitioners, that if we decide to issue it, the *nited )tates Army might refuse to set

them at li!erty, with the result that the order of release will !ecome a mere scrap of paperand the )upreme #ourt of the hilippines will !e placed in the unenvia!le position of

utter ridicule. 'e have to answer in the most definite way that we can not agree with such

a narrow point of view.

@ut suppose the most unepected should happen, that there might !e mem!ers of the*nited )tates Armed $orces who will !e !lind enough to ignore the order of this )upreme

#ourt, to make a mockery of the administration of /ustice, shall that unthinka!le

hypothesis deter us from doing our dutyO Eur answer is a simple. 8o. 8o one and nothing

in the whole world, neither the allDpowerful army which hum!led &ermany and forcedthe surrender of the 3invinci!le3 Japanese Army, nor weapons more dreadful than the

atomic !om!, the menace of an imminent catastrophe, shall !e powerful enough to make

us flinch from complying with our plain duty as Justices of the )upreme #ourt. 'e mustdo our duty as our conscience dictates, without fear nor favor. It is our duty to make

reason and right supreme regardless of conse9uences. %aw and /ustice might suffer

set!acks, endure eclipses, !ut at the end they shall reign with all the splendors of the real

ma/esty. -Ca9ui>a &s. @radford, &.C. 8o. %D44, pp. ;, 55, ante, dissenting.

'e recogni>ed no one to !e a!ove the law. "ere military might cannot change and nullify the

course of /ustice. In the long run, every!ody must have to !ow and prostrate himself !efore the

supreme ma/esty of the law.

11. BA@=A) #EC*)

In praying for a writ of $abeas "orp#s, petitioner wants us to order that he !e returned from the

status of an accused war criminal to that of a prisoner of war.

Be is not seeking release from confinement.

'e are of opinion that the petition for a a writ of $abeas "orp#s must !e denied. The purpose of

said writ is to restore li!erty to a person who is !eing deprived of it without due process of law.)uch is not the case of petitioner. Be does not complain of any illegal detention or deprivation of

personal freedom.



Be is deprived of his li!erty !ecause he is, according to his own allegation, a prisoners of war.

'hether or not he should !e accused as a war criminal, is not a proper 9uestion to !e raised in

$abeas "orp#s proceeding.

The fact that petitioner is an accused war criminal does not change his status as a war prisoner.

Be remains to !e so, whether he is prosecuted as a war prisoner !ecause he was placed andregarded as war criminal or not.

8ot having lost his status as a war prisoners !ecause he was placed and regarded as a warcriminal, there is no reason for ordering his reversion to a status which he did not cease to retain

since his surrender or capture on )eptem!er 0, 1647.

$or these reasons we voted for the denial of the writ of $abeas "orp#s.

10. J*CI)(I#TIE8 E$ TB= "I%ITACY #E""I))IE8

'e are opinion that the "ilitary #ommission conducting the trial of petitioner has /urisdiction totry him for the crimes alleged in the 102 items in the specified charges filed against him.

$rom the very allegations and ehi!its of petitioner it appears that said "ilitary #ommission was

created and organi>ed !y orders of &eneral (ouglas "acArthur, #ommandeer in #hief of the

*nited )tates Army $orces in 'estern acific.

'e are of opinion that said #ommander in #hief has authority to convene said "ilitary#ommission.

etitioner contends that 3there !eing no marital law, active hostilities in the hilippine Islands at

the time of the appointment of the commission, there was no authority to appoint thecommission, and the commission in without /urisdiction.

'e do not agree with the contention. 8either martial law, nor the eistence of "ilitary

&overnment, nor the waging of active hostilities is a prere9uisite for eercising the power of

appointing a "ilitary #ommission.

In the a!sence of preDesta!lished tri!unals clothed with authority to try war criminals, "ilitary#ommission may !e esta!lished for said purpose, and unless organi>ed !y the #hief =ecutive

himself they may !e organi>ed !y the military #ommander in #hief, representing said #hief

=ecutive.

The American Cepresentatives -%ansing and )cott in the Allied commission of 17 organi>edafter the first 'orld 'ar, although opposed, with the Japanese Cepresentatives, the creation of an

international criminal court, which !ecame a!ortive, were of opinion that war criminals may !e

tried !y "ilitary #ommission of the offended countries.

12. #E%%=#TIG= C=)E8)I@I%ITY



Although we maintain that the "ilitary #ommission here in 9uestion has /urisdiction to try the

case for war crimes against petitioner Yamashita, in the regulations governing the trial of war

criminals, =hi!it $, there are several features which should not !e left unchallenged. )ection 4Db, under the title of 3Jurisdiction3 of =hi!it $, provides 3Any military or naval unit or any

official or unofficial group or organi>ation whether or not still in eistence, may !e charged with

criminal acts or complicity therein and tried !y a "ilitary #ommission.3

This provision, undou!tedly, advances the principle of collective responsi!ility incontradistinction to the principle of individual criminal responsi!ility.

*nder the principle of individuali>ed criminal responsi!ility, no person may !e convicted of any

offense without due process of law and without proving in said process in which he should alsoen/oy the guarantee of e9ual protection of the laws, that the he is personally guilty of the offense.

*nder the principle of collective criminal responsi!ility, any mem!er of any social group or

organi>ation may !e convicted without any hearing if, in a process where he did not have his day

in court, the social group or any other mem!er thereof is found guilty of an offense.

(uring the Japanese regime, when a mem!er of a family was found !y the military police, withor without ground, as responsi!le for an alleged offense or !eing a mem!er of a guerrilla unit, the

remaining mem!ers of his family were also made to suffer.

'hen a town or !arrio was suspected of har!oring g#errilleros, the Japanese would punish the

whole town or !arrio !y mowing down all the inha!itants, or !urning all the houses, or, at least,su!/ecting all the male inha!itants thereof to !rutal >onings. The ruins of "anila are graphic

illustrations of how the principle worked.

It is unnecessary to ela!orate more to show the grave ini9uities to which the principle ofcollective criminal responsi!ility leads.

'e are of opinion that said principle violates the constitutional guarantee of due process of law

and therefore, we should have issued a writ of prohi!ition en/oining the "ilitary #ommission

from eercising the unconstitutional /urisdiction granted in section 4Db of =hi!it $.

14. =GI(=8#=

)ection 1; -1, under the title of 3=vidence,3 provides what may !e admitted as evidence asfollows 3Any document which appears to the commission to have !een signed or issued

officially !y any officer, department, agency, or mem!er of the armed forces of any government,without proof of the signature or of the issuance of the document.3

The following may also !e admitted as evidence according to section 1; -2 3Affidavits

depositions, or other statements taken !y an officer detailed for that purpose !y military

authority.3



'e are of opinion that the admission of documents as evidence, 3without proof of the signature

or of the issuance of the document,3 is a denial of the due process of law constitutionally

guaranteed to all persons !efore he could !e deprived of his life, li!erty, or property. Theauthenticity or genuiness of a document is an essential element in order that it may ac9uire the

nature of an evidence. roof of signature of the issuance of the document is essential to show its

genuiness.

The admission of affidavits 3or other statements taken !y an officer detailed for that purpose !ymilitary authority3 is clear violation of the constitutional guarantee that in all criminal

prosecution that accused shall en/oy the right3 to meet the witness face to face.3 -Art. III, sec. 1

M1N, #onstitution of the hilippines. The "ilitary #ommission accepted as evidence againstaccused Yamashita the affidavits of 8aokata *tsunomiya -=hi!its % and ", denying said

Yamashita the constitutional right 3to meet face to face affiant 8aokata *tsunomiya.

According to section 1; -4 of the regulations -=hi!it $+ 3Any diary, letter or other document

appearing to the to the commission to contain information relating to the charge,3 may also !e

admitted as evidence. This provision denies also to the accused the constitutional guarantee ofmeeting a witness face and, therefore, of crossDeamining him.

'e are of opinion that the admission of evidence a!oveDmentioned must !e prohi!ited, and that a

writ of prohi!ition issued !y the #ourt is a proper remedy.

17. B=AC)AY

The regulations -=hi!it $ authori>es also the admission of hearsay as evidence.

)ection 1;Dd of said regulation provides 3If the accused is charged with an offense involving

concerted criminal action upon the part of a military of naval unit, or any group or organi>ation,evidence which has !een given previously at a trial of any mem!er of that unit, group ororgani>ation, relative to that concerted offense, may !e received as pri!a fa"ie evidence that the

accused likewise is guilty of that offense.3

In section 1;De, the o!/ectiona!le feature of a hearsay evidence is aggravated !y the adherence tothe principles of collective criminal responsi!ility. It provides 3The findings and /udgment of a

commission in any trial of sa unit, group or organi>ation with respect to the criminal character,

purpose or activities thereof shall given full faith and credit in any su!se9uent trial !y that or any

other commission of an individual person charged with criminal responsi!ility throughmem!ership in such unit, group or organi>ation convicted !y the commission, the !urden of the

proof shall shift to the accused to esta!lish any mitigating circumstances relating to hismem!ership or participation therein.3

'e are opinion, too, that the "ilitary #ommission should !e prohi!ited to follow the un/ust procedures delineated in the a!oveD9uoted provisions, the o!/ectiona!le character of which was

eplicitly admitted even !y the a!i"#s "#riae who appeared to argue in this case in opposition to

the granting of remedies sought !y petitioner.



1;. $*8(A"=8TA% CI&BT) &*ACA8T==( TE =G=CY@E(Y

8o matter who the petitioner is, we are of opinion that he is entitled to all the safeguard of a fair

trial.

The fundamental rights freedoms guaranteed in the #harter of the *nited 8ations are guaranteedto all human !eings, without eception.

In his annual proclamation setting 8ovem!er 00, 1647, as Thanksgiving (ay, resident Truman,

among other things, said 3%i!erty knows no race, creed or class in our country or in the world.

In unity we found our first weapon, for without it, !oth here and a!road, we were doomed. 8onehave known this !etter than our very gallant dead, none !etter than their comrade $ranklin

(elano Coosevelt. Eur Thanksgiving has the humility of our deep mourning for them, our vast

gratitude for them.

3Triumph over the enemy has not dispelled very difficulty. "any vital and farDreaching decisions

await us as we strive for a /ust and enduring peace. 'e will not fail if we preserve, in our ownland and throughout the world, the same devotion to the essential freedoms and rights of

mankind which sustained us throughout the war and !rought us final victory.3

And rime "inister Attlee, in the face of the potential destructiveness of the atom !om!, said

!efore the =nglish arliament 3It is well that we should make up our minds that in a war on the

scale to that which we have /ust emerged every weapon will !e used. 'e may confidently epect

the fullest destruction of great cities, death of millions and the setting !ack of civili>ation to anunimagina!le etent.

38o system of safeguards which could !e devised will of itself I emphasi>ed of itself

provide an effective guarantee against production of automatic weapons !y a nation or nations !ent on aggression.

3'ith the terri!le march of the science of destruction, every nation will reali>e more urgently the

overwhelming need to maintain the rule of the law among nations and to !anish the scourage of

war from the earth.

3'e have in prospect the meeting of *nited 8ations Ergani>ation and there is an instrumentwhich, if all are resolved to use it, could esta!lish the rule of the law and prevent war I

resolved.3

In the eternal struggle !etween the principles of right and wrong, there no choice if humanitymust survive. %incoln said 3That is the real issue that will continue in this country when these poor tongues of Judge (ouglas and myself shall !e silent. It is the eternal struggle !etween these

two principles, right and wrong, throughout the world. They are the two principles that have

stood face to face from the !eginning of time.3

'hen we voted for the granting of the writ of prohi!ition, we did it out of consistency, as thevi!rant words of Jefferson must no cease ringing ours in ours ears when he said 3'hat a



stupendous, what an incomprehensi!le machine is manL who can endure toil, famine, stripes,

imprisonment, and death itself, in vindication of his own li!erty, and, the net moment !e deaf to

all those motives whose power supported him through his trial, and inflict on his fellowmen a !andage, one our of which is fraught with more misery than ages of that which he rose in

re!ellion to oppose.3

1. 8==(=( )=CGI#= TE TB= "ECA% A8( #*%T*CA% *CE)=) E$ B*"A8ITY

If petitioner is tried and convicted under a process in which some of the recogni>ed essentialguarantees for a fair trial are violated, it would produce a result opposite that epected !y those

who are following up the trials of all war criminals+ the arousing of a deepDrooted universal

conviction that law must !e supreme and that /ustice should !e e9ually administered to each andvery mem!er of humanity.

The peoples of all nations who are keenly watching the prosecution of Yamashita should !e

convicted, !y conclusive evidence, that said prosecution is not a mere parody of the

administration of /ustice, devised to disguise the primitive impulses of vengeance and retaliation,the instinctive urge to crush at all costs, no matter what the means, hated fallen enemy.

The prosecution, trial, and conviction of Yamashita must impress all the peoples of the world that

the principle of law is paramount, and supersedes and wipes out all other considerations in

dealing with war or common criminals. Etherwise, their faith in the supremacy of law as theinvulnera!le !ulwark of all fundamental human rights will !e shaken, and the moral position of

the victorious *nited 8ations, the ethical value of the grandiose pronouncements of their leaders,

and the profound significance of the lofty ideals for which millions of their soldiers have foughtand died, will !e weakened and diminished to such an etent as to make !arren all the

tremendous sacrifices made !y so many countries and so many peoples in the last glo!al

hecatom!.

It was Ihering who, in his 3 LAW AS A MEANS TO AN END ,3 said that 3There is no humanlife which eist merely for itself, every one is at the same time for the same of the world every

man in his place, however limited it may !e, is a colla!orator in the cultural purposes of

humanity . . . . I cannot imagine a human life so poor, so devoid of content, so narrow, so

misera!le, that it is not of some good to some other life+ even such a life has not seldom !ornethe world the richest fruit.3 -age ;:.

)o even the shameful eploits in the hilippines with which Yamashita ingloriously crowned his

military career, at its peak when he con9uered "alaya and )ingapore, and descended from the

pedestal of the greatest 8ippon military hero in all her history to the moral a!yss of thata!omina!le monstrous figure, the greatest war criminal in Asia and in the acific, cannot put

render some service to the cultural purposes of humanity if, !y his due trial in accordance with

the elemental rules in the criminal procedure, the sense of law and /ustice is further developed inthe conscience of the present and future generations.

15. E*C GET=



$rom all foregoing, when the resolution to dispose of this case was put to a vote, we concurred in

the denial of the petition for a writ of $abeas "orp#s, and we voted for the granting of the writ of

prohi!ition in order that the o!/ectiona!le features in the trial !efore the "ilitary #ommissionmay !e eliminated, so that petitioner Yamashita may !e given the full /ustice due to all human

!eings.