G.R. No.
81561             January 18, 1991 of one of the gloves. He made an opening on one of the cellophane wrappers and took several grams
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.
BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to
Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley
Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino
Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the
proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes
that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract
necessary for the transaction, writing therein his name, passport number, the date of shipment and
the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich,
Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant,
however, refused, assuring her that the packages simply contained books, cigars, and gloves and
were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted
on inspecting the packages. The four (4) packages were then placed inside a brown corrugated box
one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages
before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p.
8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes
(proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes
for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His
curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves
inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening
of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory
examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6,
1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National
Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14,
1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest
of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the
NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from
inside the gloves. Dried marijuana leaves were found to have been contained inside the cellophane
wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes. He discovered that
the package contained bricks or cake-like dried marijuana leaves. The package which allegedly
contained tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly
stocked underneath the cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents thereof, after
signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited
by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the
Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for
laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified
by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as
the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR PARCELS.
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THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS
RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON
HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be held
inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to
be determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367
US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]),
declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant,
abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948])
wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter
(Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the
advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66
SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See
also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other authorized
government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation
of appellant's constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's
person, whether citizen or alien, from interference by government, included in which is his residence,
his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain
from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v.
California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing
the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in
previous cases, its protection applies to governmental action. Its origin and history clearly show that
it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a
limitation upon other than governmental agencies; as against such authority it was the purpose of
the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling
and the possession of his property, subject to the right of seizure by process duly served.
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The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen — the owner of a
motel in which appellant stayed overnight and in which he left behind a travel case containing the
evidence*** complained of. The search was made on the motel owner's own initiative. Because of it,
he became suspicious, called the local police, informed them of the bag's contents, and made it
available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of evidence obtained
through a search by a private citizen. Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the
argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the
postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes
into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at
that which is in plain sight is not a search. Having observed that which is open, where no trespass has
been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the
contraband articles are identified without a trespass on the part of the arresting officer, there is not
the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v.
State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken
into custody of the police at the specific request of the manager and where the search was initially
made by the owner there is no unreasonable search and seizure within the constitutional meaning of
the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query
which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of constitutional
democracy. Protection against whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a restraint
directed only against the government and its agencies tasked with the enforcement of the law. Thus,
it could only be invoked against the State to whom the restraint against arbitrary and unreasonable
exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first secured if it
is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the
proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by
the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence
obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not
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whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p.
8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against
the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation of the Bill of Rights should also be construed
as an act of the State would result in serious legal complications and an absurd interpretation of the
constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation
were not observed.
Again, the contention is without merit, We have carefully examined the records of the case and found
nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional
rights or that he gave statements without the assistance of counsel. The law enforcers testified that
accused/appellant was informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and
credence, there being no evidence to the contrary. What is clear from the records, on the other hand,
is that appellant refused to give any written statement while under investigation as testified by Atty.
Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you
investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original
Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have examined
the assailed judgment of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was
not the owner of the packages which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-
minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the
cost of the shipment since the German national was about to leave the country the next day (October
15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four
(4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with
the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would
not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and
the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other
hand, would not simply accept such undertaking to take custody of the packages and ship the same
from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily
agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he
was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244;
Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37
N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]);
Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask
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Michael's full name, his complete address or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should have so indicated in the contract of
shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the
owner and shipper thereof giving more weight to the presumption that things which a person
possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point,
appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.

SO ORDERED.

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In the case of Nicaragua v. United States of America, concerning military and paramilitary activities
against Nicaragua, the Court had first to make a judgement on its jurisdiction. On November 26,
1984, the United States Government has invoked a number of reasons for trying to escape
international justice.
We know that the submission to the procedure before the Court and to its decision’s rests for each
State on a voluntary act. This approach commits the State which engages itself to accept the
jurisdiction of the Court in any lawsuit with another State having acted in the same way. But each
State may accompany certain reservations with its declaration of acceptance of the jurisdiction. Thus,
the United States of America had stated that it excluded from the jurisdiction of the Court “disputes
arising from a multilateral treaty, unless all the parties to the treaty which the decision concerns also
were parties to the case submitted to the courtyard”.
Nicaragua, in its Application, relied on the violation by the United States of America of obligations
contained in both the Charter of the United Nations and the Charter of the Organization of American
States (OAS), two texts which are multilateral treaties. But other Central American states could be
considered as concerned by the decision. The United States of America therefore argued in the first
part of the case that the Court lacked jurisdiction.
These pleadings were an opportunity for them to give their arguments: incompetence of the Court
since the law applicable according to the applicant’s own request was withdrawn from the field of
jurisdiction by the American reserve. Incompetence also, because the problems of the use of force
and of collective self-defense have political and military aspects that fall outside the jurisdiction of a
court. By carefully reserving all substantive issues, the Court in 1984 rejected these arguments and
positively decided the question of its jurisdiction.
The judgement rendered on the merits and motivated in one hundred and forty-two pages, is a
perilous and rather fascinating exercise of balance and cautious subtlety. The operative part has
sixteen points, decided by eleven votes to four, or for the most part twelve to three or fourteen to
one. In its drafting, it reflects the difficult but not impossible coherence of a Court formed of jurists as
diverse in their cultures, their temperaments, their formations, their ideologies. The result is a clear
condemnation of U.S. actions in Central America.
The Court recognises that El Salvador is a State concerned which could be “affected” by the decision
but is not a party to the case. It therefore admits the application of the American reserve, but it does
so strictly. This reservation prevents it, of course, from basing its decision on the Charter of the
United Nations or that of the OAU. But this does not prevent it from using other sources of law:
customary international law and general imperative law (jus cogens). Strongly rooted socially, these
sources of law, unaccompanied by the formalism by which treaties express the will of the States, are
of an authenticity guaranteed by other factors of acceptance, tacit factors that it belongs to the judge
to identify.
It is on the basis of this law that the Court has condemned the (multiple) violations committed by the
United States of America against international legality: “violations of the principles of non-
intervention, non-use of force and sovereignty of another State, by training, arming, equipping,
financing and supplying the Contras; attacking Puerto Sandino, Corinto, Potosí, San Juan del Sur; by
flying over the territory of Nicaragua, laying mines in the internal or territorial waters of Nicaragua”,
“encouragement to commit acts contrary to the general principles of humanitarian law, producing in
1983 a manual entitled Psychological Operations in Guerrilla Warfare”.
If the phrase of June 27, 1986, with few exceptions, did not have all the echoes it deserves in the
mainstream press, it is because the United States Government, its allies and all ideological apparatus
that serves them are sought after by this judgement and want to downplay the scope for two
reasons. On the one hand, it reveals that certain fundamental legal principles are unavoidable; on the
other hand, in the contemporary ideological confusion and the war of information, the Court appears
by this decision as the indispensable organ of objectivation of the situations because it operates the
necessary qualifications of the facts.
The United States of America, failing in the proceedings on the merits, had thought that it could
guarantee itself against any application of the law which was condemned to have been sustained,
initially, the Court’s incompetence for various reasons, among those who been applying their reserve.
But they claimed to be yet another source of the law was not applicable by the Hague jurisdiction to
this dispute because, in matters of recourse to armed force (and this is what it is about “the relevant
provisions of the United Nations Charter summarize and supersede the principles of general and
customary international law in this field”).
The evasion of the greatest world power before the application of the law is consumed. This terrible
disregard of the basic text that underpins contemporary international society: the United Nations
Charter, and the desire to extend this exclusion to the whole of international law, are in line with the
change in the attitude of States with regard to the United Nations system, illustrated in particular by
their withdrawal from UNESCO.
Allergic to the international legality, products of a democratic mechanism in which all the States of
the world participate, the United States of America knows that there will not be an honest jurist to
justify their actions in Central America by maintaining that Nicaragua, a small a country of three
million inhabitants, economically weak, military threatens the American giant. And they are choosing,
through a procedural mechanism, to paralyse the application of fundamental texts.
The Court accepts the paralysis imposed, but demonstrates its vitality and the vitality of the law by
refusing to extend this paralysis to other sources of international law. And, in doing so, it opens a
small skylight on hope. For, under the neutral terms of the jurists’ memoirs, the American arguments
led to the end of hope: if the Court cannot rely on the Charter, it cannot rely on any other rule of law,
and if it cannot entertain grievances relating to the unlawful use of armed force (because these
grievances are the sole responsibility of other bodies, that is to say the Security Council, where the
crippling virus is called a veto), then, when the force of arms sets out, there is no room for the law.
The judgement of June 27, 1986 refuses that. Law is the social institution whose purpose, when not
deviated, is to regulate, limit or even eliminate the use of force. As a result, the years of debate
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within the specialised committees are not entirely useless in order to build up international law in
stone, to determine how the commitment of States is expressed, to refine the principle of good faith,
to give a definition of aggression, build a humanitarian law.
Principles as fundamental as the respect of the sovereignty of a State, the prohibition of the use of
the force (except case of self-defense carefully identified), the prohibition of the intervention in the
affairs of a State, the inviolability of the territory, were all constructed as norms of international law
by the will of the States expressed not only in the form of certain treaties duly signed and ratified, but
also by adherence to an international custom: the result of State attitudes (precedents) accompanied
by acceptance of the norm (opinio juris).
The affirmation of the existence of this custom in the recent judgement clarifies the question of
voluntarism for the greater good of international law. It is true, and it cannot be otherwise, that
international law is the result of the will of States; but there can be no confusion between the will of
the State, the mature fruit of social consciousness, and the caprices of a changing political will, the
excess of voluntarism which would reduce international law to almost nothing. What the deep will of
the people of the United States of America has forged over decades, and in agreement with other
peoples, as the basic norms of the democratic functioning of international society, the current United
States Government cannot remove it by playing a reserve.
Finally, it is interesting to find in the writings of international judges the remark that “while the
United States of America can certainly make its own assessment of the human rights situation in
Nicaragua, the use of force cannot be the appropriate method for verifying and ensuring compliance
with these rights”. And to respond to the United States of America, which sees the excessive
militarisation of Nicaragua as proof of its aggressive aims, the Court retorts that “it is irrelevant and
useless to take a position on this allegation that there are no rules in international law other than
those which the State concerned may accept, by treaty or otherwise, imposing the limitation of the
level of armaments of a sovereign State, this principle being valid for all States without distinction”.
RELATED
Name of the Case: Case Concerning the Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua vs United States)  ports, oil installations, and a naval base. Nicaragua alleged that aircrafts belonging to the United
The Court: International Court of Justice
Year of Decision: 1986. 
Note: This post will discuss the International Court of Justice’s (ICJ) discussions on the use of force and
self-defence.If you would like to read about the jurisdictional issues relating to the multilateral treaty
reservation of the United States and the ICJ’s reliance on customary law, please click here. For a
diagram on some of the points discussed here, click here. It is recommended to use the diagram
alongside this blog post.
Overview
The case involved military and paramilitary activities carried out by the US against Nicaragua from
1981 to 1984. Nicaragua asked the Court to find that these activities violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced by a government installed
by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza Government
and  former members of the National Guard opposed the new government. The US – initially
supportive of the new government – changed its attitude when, according to the United States, it
found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April
1981 the United States stopped its aid to Nicaragua and in September 1981, according to Nicaragua,
the United States “decided to plan and undertake activities directed against Nicaragua”.
The armed activities against the new Government was carried out mainly by
(1)   Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa
Rica. Initial US support to these groups fighting against the Nicaraguan Government (called “contras”)
was covert. Later, the United States officially acknowledged its support (for example: In 1983
budgetary legislation enacted by the United States Congress made specific provision for funds to be
used by United States intelligence agencies for supporting “directly or indirectly military or
paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics, and that the contras were paid for and directly
controlled by the United States. Nicaragua also alleged that some attacks against Nicaragua were
carried out, directly, by the United States military – with the aim to overthrow the Government of
Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports, and other attacks on
States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field, and to
intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s
jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however,
stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN
Charter when it provided “upon request proportionate and appropriate assistance…” to Costa Rica,
Honduras, and El Salvador in response to Nicaragua’s acts of aggression against those countries
(paras 126, 128).
7|Page
  

The Court’s Decision:

The US violated customary international law in relation to (1), (2), (4) and (5) above. On (3), the Court
found that the United States could not rely on collective self-defence to justify its use of force against
Nicaragua.

Relevant Findings of the Court:

1. The Court held that the United States violated its customary international law obligation not to
use force against another State when its activities with the contras resulted in the threat or use of
force  (see paras 191-201). 

The Court held that:

F1: Map of  The prohibition on the use of force is found both in Article 2(4) of the Charter of the
Nicaragua, Costa Rica, Honduras and El Salvador. Source: Google Earth United Nations (UN Charter) and in customary international law.

 In a controversial finding the Court sub-classified the use of force as:

(1) “most grave forms of the use of force” (i.e. those that constitute an armed attack); and
Questions before the Court:
(2) “other less grave forms” of the use of force (i.e. organizing, instigating, assisting, or participating in
1. Did the US violate its customary international law obligation not to intervene in the affairs
acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or
of another State, when it trained, armed, equipped, and financed the contra forces or
use of force, but not amounting to an armed attack). (Para 191), 
when it encouraged, supported, and aided the military and paramilitary activities against
Nicaragua?  The United States violated the customary international law prohibition on the use of force
when it laid mines in Nicaraguan ports. It also violated this prohibition when it attacked
2. Did the US violate its customary international law obligation not to use force against
Nicaraguan ports, oil installations, and a naval base (see below). The United States could
another State, when it directly attacked Nicaragua in 1983 and 1984 and when its
only justify its action on the basis of collective self-defence, if certain criteria were met
activities in point (1) above resulted in the use of force?
(these criteria are discussed below).
3.  Can the military and paramilitary activities that the US undertook in and against
 The United States violated the customary international law prohibition on the use of force
Nicaragua be justified as collective self-defence?
when it assisted the contras by “organizing or encouraging the organization of irregular
4. Did the US breach its customary international law obligation not to violate the sovereignty forces and armed bands… for incursion into the territory of another state” and
of another State, when it directed or authorized its aircrafts to fly over the territory of participated “in acts of civil strife…in another State”  and when these acts involved the
Nicaragua and because of acts referred to in (2) above? threat or use of force.

5. Did the USs breach its customary international law obligations not to violate the  The supply of funds to the contras did not violate the prohibition on the use of force. On
sovereignty of another State, not to intervene in its affairs, not to use force against the contrary, Nicaragua had previously argued before the Court that the United States
another State and not to interrupt peaceful maritime commerce, when it laid mines in the determined the timing of offensives against Nicaragua when it provided funds to
internal waters and in the territorial sea of Nicaragua? the contras. The Court held that “…it does not follow that each provision of funds by the

8|Page
 United States was made to set in motion a particular offensive, and that that offensive was
planned by the United States.” The Court held further that the arming and training of the
contras and the supply of funds, in itself, only amounted to acts of intervention in the
internal affairs of Nicaragua and did not violate the prohibition on the use of force (para
227) (again, this aspect will be discussed in detail below).

2. The Court held that the United States violated its customary international law obligation not to
use force against another State when it directly attacked Nicaragua in 1983 and 1984 (see paras 187
– 201).

Note: A controversial but interesting aspect of the Court’s judgement was its definition of an armed
attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
carry out acts of (sic) armed force against another State of such gravity as to amount to (inter alia) an
actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein”.

Note also that that he second point somewhat resembles Article 3(g) of the  UNGA Resolution 3314
(XXIX) on the Definition of Aggression .

The Court further held that:

 Mere frontier incidents will not considered as armed attacks, unless, because of its scale
and effects, it would have been classified as an armed attack had it been carried out by
regular forces.

 Assistance to rebels by providing weapons or logistical support did not constitute an

armed attack. Instead, it can be regarded as a threat or use of force or an intervention in
the internal or external affairs of other States (see paras 195, 230).
 Under Article 51 of the UN Charter and under CIL – self-defence is only available against a
use of force that amounts to an armed attack (para 211). 
Note:  In  in the ICJ’s Case Concerning Oil Platforms and the ICJ’s Advisory Opinion on the Legal
Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called
the Palestine wall case) the ICJ confirmed the definition of  an “armed attack” as proposed in the
Nicaragua case. Draft Articles on State Responsibility, prepared by the International Law Commission,
provides significant guidance as to when acts of non-State actors may be attributed to States. These
articles, together with recent State practice relating attacks on terrorists operating from other
countries may have widened the scope of an armed attack, and consequently, the right of self
defence, envisaged by the ICJ. (for example, see  discussion surrounding the United States’ attacks
in  Afghanistan and Iraq) See also a  paper by  Max  Plank Institute on this topic (2017).
F 2. The most serious use of force and its consequences. Full diagram is here.
3. The Court held that the United States could not justify its military and paramilitary activities on
the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based requirements on the exercise of the
right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent right of individual or collectiveself-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Measures taken
by Members in the exercise of this right of self-defence shall be immediately reported to the Security
Council.”
The Court held that:

9|Page
  Customary international law allows for exceptions to the prohibition on the use of force,
which includes the right to individual or collective self-defence (see here for a difference
between individual and collective self defense). The United States, at an earlier stage of
the proceedings, had also agreed that the UN Charter acknowledges the existence of this
customary international law right when it talks of the “inherent” right under Article 51 of
the Charter (para.193).
 When a State claims that it used force in collective self-defence, the Court would
examine the following:
(1) Whether the circumstances required for the exercise of self-defence existed; and
(2) Whether the steps taken by the State, which was acting in self-defence, corresponds to the
requirements of international law.
 Under international law, several requirements must be met for a State to exercise the
right of individual or collective self-defence:
(1)  A State must have been the victim of an armed attack;
(2)  That State must declare itself as a victim of an armed attack. The assessment on whether an
armed attack had taken place or not, is done by the State who was subjected to the attack. A third
State cannot exercise a right of collective self-defence based that third State’s own assessment;
(3)  In the case of collective self-defence, the victim State must request for assistance. The Court held
that “there is no rule permitting the exercise of collective self-defence in the absence of a request by
the State which regards itself as the victim of an armed attack”;
(4)  A State that is attacked, does not, under customary international law, have the same obligation as
under Article 51 of the UN Charter to report to the Security Council that an armed attack happened –
but the Court held that “the absence of a report may be one of the factors indicating whether the
State in question was itself convinced that it was acting in self-defence” (see paras 200, 232 -236).
“…Whatever influence the Charter may have had on customary international law in these matters, it
is clear that in customary international law it is not a condition of the lawfulness of the use of force in
self-defence that a procedure so closely dependent on the content of a treaty commitment and of the
institutions established by it, should have been followed. On the other hand, if self-defence is
advanced as a justification for measures which would otherwise be in breach both of the principle of
customary international law and of that contained in the Charter, it is to be expected that the
conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law
position, the absence of a report may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (See paras 200, 232 -236)”.
 The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica,
and Honduras to determine if (1) an armed attack was undertaken by Nicaragua against
the three countries, which in turn would (2) necessitate those countries to act in self-
defence against Nicaragua (paras 230  – 236). The Court noted that (1) none of the
countries who were allegedly subject to an armed attack by Nicaragua declared
themselves as victims of an armed attack; (2) they did not request assistance from the
United States to exercise its right of self-defence; (3) the United States did not claim that
when it used force, it was acting under Article 51 of the UN Charter; and (4) the United
States did not report that it was acting in self-defense to the Security Council. The Court
concluded that, based on the above, the United States cannot justify its use of force as
collective self-defence.
 In any event, the Court held that the criteria relating to necessity and proportionality, that
is  required to be met when using force in self-defence – were also not fulfilled (para 237).
 
 4. The Court held that the United States breached its CIL obligation not to intervene in the affairs
of another State, when it trained, armed, equipped and financed the contra forces or encouraged,
supported and aided the military and paramilitary activities against Nicaragua. 
The Court held that:
 The principle of non-intervention requires that every State has a right to conduct its affairs
without outside interference. In other words, the principle “…forbids States or groups of
States to intervene directly or indirectly in internal or external affairs of other States.” This
is a corollary of the principle of sovereign equality of States. The Court held that:
“A prohibited intervention must accordingly be one bearing on matters in which each State is
permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation of foreign policy. Intervention is
wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.
The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention,
is particularly obvious in the case of an intervention which uses force, either in the direct form of
military action, or in the indirect form of support for subversive or terrorist armed activities within
another State (para 205).”
 Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua, to substantially damage the economy and to weaken the
political system with the aim to coerce the Government of Nicaragua to accept various
political demands of the United States. The Court concluded that:
 “…first, that the United States intended, by its support of the contras, to coerce the Government of
Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty,
to decide freely (see paragraph 205 above) ; and secondly that the intention of the contras
themselves was to overthrow the present Government of Nicaragua… The Court considers that in
10 | P a g e
international law, if one State, with a view to the coercion of another State, supports and assists
armed bands in that State whose purpose is to overthrow the government of that State, that
amounts to an intervention by the one State in the internal affairs of the other, whether or not the
political objective of the State giving such support and assistance is equally far reaching.”
 The financial support, training, supply of weapons, intelligence and logistic support given
by the United States to the contras violated the principle of non-interference. “…(N)o such
general right of intervention, in support of an opposition within another State, exists in
contemporary international law”, even if such a request for assistance is made by an
opposition group of that State (see para 246 for more).
F 3. The prohibition on non intervention. For full diagram, click here.
 However, in a controversial finding, the Court held that the United States did not devise
the strategy, direct the tactics of the contras or exercise control on them in manner so as
to make their acts committed in violation of international law imputable to the United
States (see in this respect “Determining US responsibility for contra operations under
international law” 81 AMJIL 86). The Court concluded that “a number of military and
paramilitary operations of the contras were decided and planned, if not actually by United
States advisers, then at least in close collaboration with them, and on the basis of the
intelligence and logistic support which the United States was able to offer, particularly the
supply aircraft provided to the contras by the United States” but not all contra operations
reflected strategy and tactics wholly devised by the United States.
“…the various forms of assistance provided to the contras by the United States have been crucial to
the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United
States aid. On the other hand, it indicates that in the initial years of United States assistance the
contra force was so dependent. However, whether the United States Government at any stage
devised the strategy and directed the tactics of the contras depends on the extent to which the United
States made use of the potential for control inherent in that dependence. The Court already indicated
that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that
the contra force may be equated for legal purposes with the forces of the United States…The Court
has taken the view (paragraph 110 above) that United States participation, even if preponderant or
decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of
its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in
itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the
United States the acts committed by the contras in the course of their military or paramilitary
operations in Nicaragua. All the forms of United States participation mentioned above, and even the
general control by the respondent State over a force with a high degree of dependency on it, would
not in themselves mean, without further evidence, that the United States directed or enforced the
perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant
State. Such acts could well be committed by members of the contras without the control of the United
States. For this conduct to give rise to legal responsibility of the United States, it would in principle
have to be proved that that State had effective control of the military or paramilitary.”
 Interesting, however, the Court also held that providing “…humanitarian aid to persons or
forces in another country, whatever their political affiliations or objectives, cannot be
regarded as unlawful intervention, or as in any other way contrary to international law”
(para 242).
  In the event one State intervenes in the affairs of another State, the victim State has a
right to intervene in a manner that is short of an armed attack (210).
“While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a
lesser degree of gravity cannot as the Court has already observed (paragraph 211 above) produce any
entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua
is accused, even assuming them to have been established and imputable to that State, could only
have justified proportionate counter-measures on the part of the State which had been the victim of
these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures
taken by a third State, the United States, and particularly could not justify intervention involving the
use of force.”
11 | P a g e
 sea, and the airspace above its territory. The United States violated customary
international law when it laid mines in the territorial sea and internal waters of Nicaragua
and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that
belong to or was under the control of the United States.. 

F 4. The less grave forms of use of force and its consequences. Full diagram is here.

5. The United States violated its customary international law obligation not to violate the
sovereignty of another State, when it directed or authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.

 The  Court examined evidence and found that in early 1984 mines were laid in or close to
ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting
ion the instructions” of the United States and acting under its supervision with its logistical
support.  The United States did not issue any warning on the location or existence of
mines and this resulted in injuries and increases in maritime insurance rates.

 The Court found that the United States also carried out high-altitude reconnaissance
flights over Nicaraguan territory and  certain low-altitude flights, complained of as causing
sonic booms.  It held that a State’s sovereignty extends to its internal waters, its territorial

12 | P a g e
U.S. Supreme Court
In re Yamashita, 327 U.S. 1 (1946)
In re Yamashita
No. 61, Misc.
Argued January 7, 8, 1946
Decided February 4, 1946*
327 U.S. 1
Syllabus
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) sanctioning
Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the law of war committed by
enemy combatants. P. 327 U. S. 11.
2. Trial of the petitioner by the military commission was lawful, although hostilities had
ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed before the cessation of hostilities, may
lawfully be tried by a military commission after hostilities have ceased -- at least until
peace has been officially recognized by treaty or proclamation by the political branch of
the Government. P. 327 U. S. 12.
(b) Trial of the petitioner by the military commission was authorized by the political
branch of the Government, by military command, by international law and usage, and by
the terms of the surrender of the Japanese government. P. 327 U. S. 13.
3. The charge preferred against the petitioner was of a violation of the law of war. P. 327
U. S. 13.
(a) The law of war imposes on an army commander a duty to take such appropriate
measures as are within his power to control the troops under his command for the
prevention of acts which are violations of the law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and he may be charged with
personal responsibility for his failure to take such measures when violations result. Pp. 327
U. S. 14, 327 U. S. 16.
(b) What measures, if any, petitioner took to prevent the alleged violations of the law of
war, and whether such measures as he may have taken were appropriate and sufficient to
discharge the duty imposed upon him, were questions within the peculiar competence of
the military officers composing the commission, and were for it to decide. P. 327 U. S. 16.
(c) Charges of violations of the law of war triable before a military tribunal need not be
stated with the precision of a common law indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set
forth a violation of the law of war, and the military commission had authority to try and to
decide the issue which it raised. P. 327 U. S. 17.
4. In admitting on behalf of the prosecution a deposition and hearsay and opinion
evidence, the military commission did not violate any Act of Congress, treaty, or military
command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.
(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an
enemy combatant by a military commission
Page 327 U. S. 3
13 | P a g e
for violations of the law of war, and imposed no restrictions upon the procedure to be
followed in such trial. Pp. 327 U. S. 19-20.
(b) Article 63 of the Geneva Convention of 1929, which provides that
"Sentence may be pronounced against a prisoner of war only by the same courts and
according to the same procedure as in the case of persons belonging to the armed forces
of the detaining Power,"
does not require that Articles 25 and 38 of the Articles of War be applied in the trial of the
petitioner. Article 63 refers to sentence "pronounced against a prisoner of war" for an
offense committed while a prisoner of war, and not for a violation of the law of war
committed while a combatant. P. 327 U. S. 20.
(c) The Court expresses no opinion on the question of the wisdom of considering such
evidence as was received in this proceeding, nor on the question whether the action of a
military tribunal in admitting evidence which Congress or controlling military command
has directed to be excluded may be drawn in question by petition for habeas corpus or
prohibition. P. 327 U. S. 23.
5. On an application for habeas corpus, the Court is not concerned with the guilt or
innocence of the petitioner. P. 327 U. S. 8.
6. By sanctioning trials of enemy aliens by military commission for offenses against the law
of war, Congress recognized the right of the accused to make a defense, and did not
foreclose their right to contend that the Constitution or laws of the United States withhold
authority to proceed with the trial. P. 327 U.S. 9.
7. The Court does not appraise the evidence on which the petitioner here was convicted.
P. 327 U. S. 17.
8. The military commission's rulings on evidence and on the mode of conducting the
proceedings against the petitioner are not reviewable by the courts, but only by the
reviewing military authorities. From this viewpoint, it is unnecessary to consider what, in
other situations, the Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.
9. Article 60 of the Geneva Convention of 1929, which provides that,
"At the opening of a judicial proceeding directed against a prisoner of war, the detaining
Power shall advise the representative of the protecting Power thereof as soon as possible,
and always before the date set for the opening of the trial,"
applies only to persons who are subjected to judicial proceedings for offenses committed
while prisoners of war. P. 327 U. S. 23.
10. The detention of the petitioner for trial, and his detention upon his conviction, subject
to the prescribed review by the military authorities, were lawful. P. 327 U. S. 25.
Leave and petition denied.
Page 328 U. S. 4
No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and
prohibition in this Court challenging the jurisdiction and legal authority of a military
commission which convicted applicant of a violation of the law of war and sentenced him
to be hanged. Denied.
No. 672. Petition for certiorari to review an order of the Supreme Court of the
Commonwealth of the Philippines, 42 Off.Gaz. 664, denying an application for writs of
habeas corpus and prohibition likewise challenging the jurisdiction and legal authority of
the military commission which tried and convicted petitioner. Denied.
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U.S. Supreme Court
In re Yamashita, 327 U.S. 1 (1946)
In re Yamashita
No. 61, Misc.
Argued January 7, 8, 1946
Decided February 4, 1946*
327 U.S. 1
Syllabus
14 | P a g e
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) sanctioning chanrobles.com-red
Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the law of war committed by
enemy combatants. P. 327 U. S. 11.
2. Trial of the petitioner by the military commission was lawful, although hostilities had
ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed before the cessation of hostilities, may
lawfully be tried by a military commission after hostilities have ceased -- at least until
peace has been officially recognized by treaty or proclamation by the political branch of
the Government. P. 327 U. S. 12.
(b) Trial of the petitioner by the military commission was authorized by the political
branch of the Government, by military command, by international law and usage, and by
the terms of the surrender of the Japanese government. P. 327 U. S. 13.
3. The charge preferred against the petitioner was of a violation of the law of war. P. 327
U. S. 13.
(a) The law of war imposes on an army commander a duty to take such appropriate
measures as are within his power to control the troops under his command for the
prevention of acts which are violations of the law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and he may be charged with
personal responsibility for his failure to take such measures when violations result. Pp. 327
U. S. 14, 327 U. S. 16.
(b) What measures, if any, petitioner took to prevent the alleged violations of the law of
war, and whether such measures as he may have taken were appropriate and sufficient to
discharge the duty imposed upon him, were questions within the peculiar competence of
the military officers composing the commission, and were for it to decide. P. 327 U. S. 16.
(c) Charges of violations of the law of war triable before a military tribunal need not be
stated with the precision of a common law indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set
forth a violation of the law of war, and the military commission had authority to try and to
decide the issue which it raised. P. 327 U. S. 17.
4. In admitting on behalf of the prosecution a deposition and hearsay and opinion
evidence, the military commission did not violate any Act of Congress, treaty, or military
command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.
(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an
enemy combatant by a military commission chanrobles.com-red
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.
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(c) The Court expresses no opinion on the question of the wisdom of considering such habeas corpus and prohibition likewise challenging the jurisdiction and legal authority of
evidence as was received in this proceeding, nor on the question whether the action of a the military commission which tried and convicted petitioner. Denied.
military tribunal in admitting evidence which Congress or controlling military command
has directed to be excluded may be drawn in question by petition for habeas corpus or
prohibition. P. 327 U. S. 23.

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

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

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

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

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

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

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

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

Leave and petition denied. 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

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