IN RE YAMASHITA, 327 U. S.

1 (1946)

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.

Held:

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)
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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

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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
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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,

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"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. chanrobles.com-red

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.