1.

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

2. Court: U.S. Supreme Court
3. Date: - Argued January 7, 8, 1946 / Decided February 4, 1946*
4. Fact: Commanding General of the Fourteenth Army Group of the Imperial Japanese
Army in the Philippine Island but later he surrendered to the United States Army and
became a prisoner of war. He was charged with violation of the law of war. On
October 8, 1945, petitioner, after pleading not guilty to the charge, was held for trial
before a military commission of five Army officers appointed by order of General
Styer.
The commission hearing two hundred and eighty-six witnesses, who gave over three
thousand pages of testimony.
5. Issue: Does the law of war impose upon an army commander to take appropriate
measures to control his troops for prevention of violations of the law of war which are
likely to attend occupation of hostile territory, and whether he may be charged with
personal responsibility for the failure to take such measures when violations result?
6. Procedural History: Respondent, General Styer was Commanding General of the
United States Army Forces Western Pacific. Respondent Styer appointed a military
commission to try Petitioner Yamashitra on the violation of war that he had not
controlled his troops, and that his subordinates committed horrible acts against
civilians and prisoners of war. The military commission tried General Yamashita as
an enemy combatant with one hundred and twenty-three series of acts, with two
hundred and eighty-six witnesses regarding the atrocities committed by his
subordinates during his command. This included a deliberate plan to massacre and
determinate a large part of the civilian population of the Batangas Province. As a
result, the military commission found him guilty of the charges, sentencing him to
death by hanging.
7. Holding:
There is an affirmative duty to take such measures as were in his power and
appropriate in the circumstances to protect prisoners of war and civilians.
8. Decision: The charge on which petitioner was tried charged him with a breach of his
duty to control the operations of the members of his command, by permitting them to
commit the specified atrocities. This was enough to require the commission to hear
evidence tending to establish the culpable failure of petitioner to perform the duty
imposed on him by the law of war, and to pass upon its sufficiency to establish guilt.
But the court concluded that the allegations of the charge, tested by any reasonable
standard, adequately allege a violation of the law of war, and that the commission had
authority to try and decide the issue which it raised. The Petitioner was found guilty,
and sentenced to death. The military commission appointed to try the petitioner was
lawfully created. Trial of the petitioner by the military commission was lawful,
although hostilities had ceased. The charge preferred against the petitioner was of a
violation of the law of war. 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. On an
application for habeas corpus, the Court is not concerned with the guilt or innocence
of the petitioner. 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. The Court does not
appraise the evidence on which the petitioner here was convicted. 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. Article 60 of the Geneva Convention
of 1929, which provides that, "At the opening of a judicial proceeding directed against
a prisoner of war, the detaining Power shall advise the representative of the protecting
Power thereof as soon as possible, and always before the date set for the opening of
the trial, applies only to persons who are subjected to judicial proceedings for offenses
committed while prisoners of war. The detention of the petitioner for trial, and his
detention upon his conviction, subject to the prescribed review by the military
authorities, were lawful.

a) The military commission appointed to try the petitioner was lawfully created.
b) 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.
c) 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.
d) The order creating the military commission was in conformity with the Act of
Congress. (Mr. Justice RUTLEDGE and Mr. Justice MURPHY dissenting.)
9. Additional Information: Yamashita Doctrine, refers to the 1945 prosecution and
eventual execution of Gen. Yamashita. It is widely accepted that Yamashita ordered
his troops not to participate in atrocities, but had poor communications with
subordinate units.
10. Analysis
- It was unprecedented and most notably in that this was the first instance in which
an enemy general had been held responsible by the United States for action (or
inaction) connected with hostilities. The novelty was not lessened by the fact that
the accused (by virtue of the diligence of defense counsel) appealed to the civilian
courts against jurisdiction claimed and exercised by the American Army.
- Both majority and minority opinions made clear that the substance of the case was
subject to re- view only by higher military authority and ultimately by the
President, the question of guilt or innocence being outside the purview of the
civilian courts. Yamashita was hanged on February 23, 1946.
- In strongly felt and vigorously uttered dissents, Justices Murphy and Rutledge
rejected the theory of command responsibility as repugnant to American legal
concepts Justice Rutledge explored the still more interesting question of the
bearing of the 5th Amendment.
11. Relevant and Cited cases:
- Ex Parte Quirin, 317 U.S. 1 (1942)
- Espionage Act of 1917, 50 U.S.C. § 38.
- Ex parte Vallandingham, 1 Wall. 243
- 61 U. S. 81; Runkle v. United States, 122 
- Dynes v. Hoover, 20 How. 5,  Page 327 U. S. 9
- U.S. 543,  122 U. S. 555-556;
- Carter v. McClaughry, 183 U. S. 365; 
- Collins v. McDonald, 258 U. S. 416.  Cf.
- Matter of Moran, 203 U. S. 96,  203 U. S. 105.
- c Ex parte Milligan, 4 Wall. 2, 
-  71 U. S. 132; Sterling v. Constantin, 287 U. S. 378; 
- Ex parte Quirin, supra,  317 U. S. 45.
- United States v. Anderson, 9 Wall. 56,  76 U. S. 70; 
- The Protector, 12 Wall. 700,  79 U. S. 702; 
- McElrath v. United States, 102 U. S. 426,  102 U. S. 438;
- Kahn v. Anderson, 255 U. S. 1,  255 U. S. 9-10.
- Stewart v. Kahn, 11 Wall. 493,  78 U. S. 507.