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LAWS OF WAR AND NEUTRALITY - Events, Treaties, Laws, and Cases

A. World War I
1. Also called First World War or Great War, an international conflict
that in 28 July 1914 11 November 1918, embroiled most of the
nations of Europe along with Russia, the United States, the Middle East,
and other regions.
2. The war pitted the Central Powersmainly Germany, Austria-Hungary,
and Turkeyagainst
Alliesmainly France, Great
Britain, Russia, Italy, Japan, and, from 1917, the United States. It ended
with the defeat of the Central Powers. The war was virtually
unprecedented in the slaughter, carnage, and destruction it caused.
B. World War II
1. World War II (WWII or WW2), also known as the Second World
War, was a global war that lasted from 1 September 1939 to 2
September 1945, although related conflicts began earlier. It
involved the vast majority of the world's nationsincluding all of
the great powerseventually forming two opposing military alliances:
the Allies and the Axis.
2. It was the most widespread war in history, and directly involved more
than 100 million people from over 30 countries. In a state of "total
war", the major participants threw their entire economic, industrial, and
scientific capabilities behind the war effort, erasing the distinction
between civilian and military resources.
3. The Empire of Japan aimed to dominate Asia and the Pacific and was
already at war with the Republic of China in 1937, but the world war is
generally said to have begun on 1 September 1939 with
the invasion of Poland by Germany and subsequent declarations of war
on Germany by France and the United Kingdom.
C. American Civil War
1. The American Civil War, fought from 12 April 1861 to 9 May 1865 to
determine the survival of the Union or independence for the
Confederacy. Among the 34 states in January 1861, seven
Southern slave states individually declared their secession from the
United States and formed the Confederate States of America.
2. The Confederacy, often simply called the South, grew to include eleven
states, and although they claimed thirteen states and additional
western territories, the Confederacy was never diplomatically
recognized by any foreign country. The states that remained loyal and
did not declare secession were known as the Union or the North.
3. The war had its origin in the factious issue of slavery, especially the
extension of slavery into the western territories. After four years of
combat, which had left around 750,000 Americans, Union and
Confederate, dead and had destroyed much of the South's
infrastructure, the Confederacy collapsed and slavery was abolished.
Then began the Reconstruction and the processes of restoring national
unity and guaranteeing civil rights to the freed slaves.
D. Covenant of the League of Nations

1. The Covenant of the League of Nations was the charter of

the League of Nations. It was signed on 28 June 1919, and became
effective on 10 January of 1920.
2. Composed of three bodies:
a. The Secretariat. This permanent body was to be responsible for
the administration of League policies and programs and was to be
housed in Geneva, Switzerland.
b. The Council. The Council was to be composed of nine member
nations. Britain, France, Italy, Japan and the United States were to
be permanent Council members. The remaining four positions were
to be chosen by the Assembly on a rotating basis.
c. The Assembly. All member nations were to be represented in the
Assembly and each was to have a single vote.
3. League members were to be pledged to the following, to:
a. Protect the territorial integrity of other member states (Article X)
b. Submit to the League disputes that threatened war
c. Employ economic and military sanctions against nations that
resorted to war
d. Participate in arms reduction programs
e. Assist in the establishment of a Permanent International Court of
4. The League of Nations was dissolved on 18 April 1946, when its assets
and responsibilities were transferred to the United Nations.
E. Kellogg-Briand Pact
1. The KelloggBriand Pact (Pact of Paris, officially General Treaty
for Renunciation of War as an Instrument of National Policy) is a
1928 international agreement in which signatory states promised not
to use war to resolve "disputes or conflicts of whatever nature or of
whatever origin they may be, which may arise among them.
2. It was signed by Germany, France and the United States on August 27,
1928, and by most other nations soon after.
3. Sponsored by France and the U.S., the Pact renounces the use of war
and calls for the peaceful settlement of disputes. Similar provisions
were incorporated into the Charter of the United Nations and other
treaties and it became a stepping-stone to a more activist American
4. It is named after its authors, United States Secretary of State Frank B.
Kellogg and French foreign minister Aristide Briand.
F. Declaration of Paris of 1856
1. The Paris Declaration Respecting Maritime Law of 16 April 1856
was issued to abolish privateering. It regulated the relationship
between neutral and belligerent and shipping on the high seas
introducing new prize rules.
2. The major points in the declaration were:
a. Privateering is, and remains, abolished;
b. The neutral flag covers enemy's goods, with the exception of
contraband of war;
c. Neutral goods, with the exception of contraband of war, are not
liable to capture under enemy's flag;

d. Blockades, in order to be binding, must be effective, that is to say,

maintained by a force sufficient really to prevent access to the coast
of the enemy.
G. Hague Convention of 1899 and 1907
1. The Hague Conventions of 1899 and 1907 are a series of
international treaties and declarations negotiated at two international
peace conferences at The Hague in the Netherlands. The First Hague
Conference was held in 1899 and the Second Hague Conference in
2. Along with the Geneva Conventions, the Hague Conventions were
among the first formal statements of the laws of war and war crimes in
the body of secular international law. A third conference was planned
for 1914 and later rescheduled for 1915, but it did not take place due
to the start of World War I.
3. Subject Matter
a. Both conferences included negotiations concerning disarmament,
the laws of war and war crimes.
b. A major effort in both conferences was the creation of a binding
international court for compulsory arbitration to settle international
disputes, which was considered necessary to replace the institution
of war.
c. This effort, however, failed at both conferences; instead a voluntary
forum for arbitration, the Permanent Court of Arbitration, was
d. Most
the United
States, Britain, Russia, France, China, and Persia, favored a process
for binding international arbitration, but the provision was vetoed by
a few countries, led by Germany.
H. Geneva Convention of 1925
1. The Geneva Convention of 1925 or the Protocol for the Prohibition of
the Use of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare was drawn up and signed at the
conference for the supervision of the international trade in arms and
ammunition, which was held in Geneva under the auspices of the
League of Nations from 4 May to 17 June 1925.
2. The conference adopted a convention for the supervision of the
international trade in arms, munitions and implements of war which
was not entered into force and, as separate document, a protocol on
the use of gases.
I. Geneva Convention of 1929
1. The Geneva Convention (1929) was signed at Geneva, July 27,
1929. Its official name is the Convention relative to the Treatment
of Prisoners of War, Geneva July 27, 1929. It entered into force 19
June 1931.
2. It is this version of the Geneva Conventions which covered the
treatment of prisoners of war during World War II. It is the predecessor
of the Third Geneva Convention signed in 1949.

3. In 1921, the International Red Cross Conference held at Geneva

expressed the wish that a special convention on the treatment of
prisoners of war be adopted.
4. The International Committee of the Red Cross drew up a draft
convention which was submitted to the Diplomatic Conference
convened at Geneva in 1929.
5. The Convention does not replace but only completes the provisions of
the Hague regulations. The most important innovations consisted in the
prohibition of reprisals and collective penalties, the organization of
prisoners' work, the designation, by the prisoners, of representatives
and the control exercised by protecting Powers.
J. Geneva Convention of 1949
1. The Third Geneva Convention, relative to the treatment of prisoners
of war, is one of the four treaties of the Geneva Conventions. The
Geneva Convention relative to the Treatment of Prisoners of War was
first adopted in 1929, but significantly revised and replaced by the
Third Geneva Convention of 1949.
2. It defines humanitarian protections for prisoners of war. There are 196
state parties to the Convention.
3. Article 3 of the Geneva Conventions applies in non-international
conflicts. It describes minimal protections which must be adhered to by
all individuals within a signatory's territory during an armed conflict not
of an international character (regardless of citizenship or lack
thereof): Non-combatants, members of armed forces who have laid
down their arms, and combatants who are hors de combat (out of the
fight) due to wounds, detention, or any other cause shall in all
circumstances be treated humanely, including prohibition of outrages
upon personal dignity, in particular humiliating and degrading
treatment. The passing of sentences must also be pronounced by a
regularly constituted court, affording all the judicial guarantees which
are recognised as indispensable by civilised peoples.
4. Article 3's protections exist even if one is not classified as a prisoner of
war. Article 3 also states that parties to the internal conflict
should endeavour to bring into force, by means of special agreements,
all or part of the other provisions of GCIII.
5. Article 4 defines prisoners of war to include:
a. Members of the armed forces of a Party to the conflict and members
of militias of such armed forces
b. Members of other militias and members of other volunteer corps,
including those of organised resistance movements
c. Members of regular armed forces who profess allegiance to a
government or an authority not recognised by the Detaining Power.
d. Civilians who have non-combat support roles with the military and
who carry a valid identity card issued by the military they support.
e. Merchant marine and the crews of civil aircraft of the Parties to the
conflict, who do not benefit by more favourable treatment under
any other provisions of international law.
f. Inhabitants of a non-occupied territory, who on the approach of the
enemy spontaneously take up arms to resist the invading forces,

without having had time to form themselves into regular armed

units, provided they carry arms openly and respect the laws and
customs of war.
K. Nuclear Non-proliferation Treaty
1. The Treaty on the Non-Proliferation of Nuclear Weapons,
commonly known as the Non-Proliferation Treaty or NPT, is an
international treaty whose objective is to prevent the spread of nuclear
weapons and weapons technology, to promote cooperation in the
peaceful uses of nuclear energy, and to further the goal of achieving
nuclear disarmament and general and complete disarmament.
2. Opened for signature in 1968, the Treaty entered into force in 1970. On
11 May 1995, the Treaty was extended indefinitely.
3. The NPT consists of a preamble and eleven articles. Three-pillar system
of the treaty, with an implicit balance among them:
a. non-proliferation,
b. disarmament, and
c. the right to peacefully use nuclear technology.
4. The NPT is often seen to be based on a central bargain: the NPT nonnuclear-weapon states agree never to acquire nuclear weapons and the
NPT nuclear-weapon states in exchange agree to share the benefits of
peaceful nuclear technology and to pursue nuclear disarmament aimed
at the ultimate elimination of their nuclear arsenals.
L. Treaty of Ghent
1. The Treaty of Ghent signed on December 24, 1814 in the city
of Ghent, was the peace treaty that ended the War of 1812 between
the United States and the United Kingdom.
2. The treaty restored relations between the two nations to status quo
ante bellum, restoring the borders of the two countries to the lines
before the war started in June 1812.
3. The Treaty was approved by the UK parliament and signed into law by
the Prince Regent (the future King George IV) on December 30 1814.
The Treaty of Ghent was not fully in effect until it was ratified by the
U.S. Senate unanimously on February 18, 1815.
4. Agreement:
a. The treaty released all prisoners and restored all captured lands and
ships. Returned to the United States were approximately 10,000,000
acres (40,000 km2) of territory, near Lakes Superior and Michigan,
and in Maine.
b. American-held areas of Upper Canada (present-day Ontario) were
returned to British control, and the American-held territory
in Spanish Florida taken from Britain and officially-uninvolved Spain
were returned to Spanish control.
c. Britain promised to return the freed black slaves that they had
taken. In actuality, a few years later Britain instead paid the United
States $1,204,960 for them.
d. Both nations also promised to work towards an ending of the
international slave trade.
M. San Francisco Treaty on September 8, 1951
1. Treaty of San Francisco or commonly known as the Treaty of
Peace with Japan, Peace Treaty of San Francisco, or San

Francisco Peace Treaty, mostly between Japan and the Allied Powers,
was officially signed by 48 nations on September 8, 1951, at the War
Memorial Opera House in San Francisco, California, United States.
2. It came into force on April 28, 1952. According to Article 11 of the
Treaty of San Francisco, Japan accepts the judgments of
the International Military Tribunal for the Far East and of other Allied
War Crimes Courts imposed on Japan both within and outside Japan.
3. This treaty served to officially end Japan's position as an imperial
power, to allocate compensation to Allied civilians and former prisoners
of war who had suffered Japanese war crimes during World War II, and
to end the Allied post-war occupation of Japan and return sovereignty
to that nation.
N. Nuremberg Charter and Judgment
1. The Charter of the International Military Tribunal Annex to the
Agreement for the prosecution and punishment of the major
war criminals of the European Axis(usually referred to as
the Nuremberg Charter or London Charter) was the decree issued
on 8 August 1945 that set down the laws and procedures by which
the Nuremberg trials were to be conducted.
2. The charter stipulated that crimes of the European Axis Powers could
be tried. Three categories of crimes were defined: crimes against
peace, war crimes, and crimes against humanity. Article 8 of the
charter also stated that holding an official position was no defense to
war crimes. Obedience to orders could only be considered in mitigation
of punishment if the Tribunal determined that justice so required.
3. The criminal procedure used by the Tribunal was closer to civil law than
to common law, with a trial before a panel of judges rather than a jury
trial and with wide allowance for hearsay evidence. Defendants who
were found guilty could appeal the verdict to the Allied Control Council.
In addition, they would be permitted to present evidence in their
defense and to cross-examine witnesses.
4. Principles:
a. Principle I: "Any person who commits an act which constitutes
a crime under international law is responsible therefore and liable to
b. Principle II: "The fact that internal law does not impose a penalty
for an act which constitutes a crime under international law does
not relieve the person who committed the act from responsibility
under international law."
c. Principle III: "The fact that a person who committed an act which
constitutes a crime under international law acted as Head of
State or responsible government official does not relieve him from
responsibility under international law."
d. Principle IV: "The fact that a person acted pursuant to order of his
Government or of a superior does not relieve him from responsibility
under international law provided a moral choice was in fact possible
to him".
e. Principle V: "Any person charged with a crime under international
law has the right to a fair trial on the facts and law."


Principle VI: "The crimes hereinafter set out are punishable as

crimes under international law:
Crimes against peace:
1. Planning, preparation, initiation or waging of a war of
aggression or a war in violation of international
treaties, agreements or assurances;
2. Participation in a common plan or conspiracy for the
accomplishment of any of the acts mentioned under
War crimes:
1. Violations of the laws or customs of war which include, but
to, murder,
or deportation to slave labor or for any other purpose
of civilian population of or in occupied territory; murder or
ill-treatment of prisoners of war or persons on the Seas,
killing of hostages, plunder of public or private property,
ofcities, towns,
or villages,
devastation not justified by military necessity.
Crimes against humanity:
1. Murder,
enslavement, deportation and
other inhumane acts done against any civilian population,
or persecutions on political, racial, or religious grounds,
when such acts are done or such persecutions are carried
on in execution of or in connection with any crime against
peace or any war crime."

g. Principle VII: "Complicity in the commission of a crime against

peace, a war crime, or a crime against humanity as set forth in
Principle VI is a crime under international law."
O. Declaration of St. Petersburg
1. The Saint Petersburg Declaration of 1868 or in full Declaration
Renouncing the Use, in Time of War, of Explosive Projectiles
under 400 Grammes Weight is an international treaty agreed
in Saint Petersburg, Russian Empire, November 29 /December 11,
1868. It succeeded the First Geneva Convention of 1864. It was a
predecessor of the well-known Hague Conventions of 1899 and 1907.
2. It was signed by the members of the International Military Commission
convened for this purpose in the presence of the Imperial Cabinet of
3. The treaty provides distinction between "explosive" and "fulminating"
bullets, to wit:
a. An "explosive" bullet contains explosive filler that detonates on
b. A "fulminating" bullet contains a small unstable high
explosive charge and is designed to shatter into fragments after
impact or inside the wound. They also have the added potential
of detonating when jarred or while being removed, complicating
first aid or surgery.
P. 1970 Declaration on Principles of International Law

1. Adopted by the UN General Assembly Resolution on 24 October 1970

as the 1970 Declaration on principles of international law concerning
friendly relations and co-operation among states in accordance with
the charter of the United Nations.
2. Principles:
a. The principle that States shall refrain in their international relations
from the threat or use of force against the territorial integrity or
political independence of any State or in any other manner
inconsistent with the purposes of the United Nations.
b. The principle that States shall settle their international disputes by
peaceful means in such a manner that international peace and
security and justice are not endangered.
c. The principle concerning the duty not to intervene in matters within
the domestic jurisdiction of any State, in accordance with the
d. The duty of States to co-operate with one another in accordance
with the Charter.
e. The principle of equal rights and self-determination of peoples.
f. The principle of sovereign equality of States.
g. The principle that States shall fulfil that the obligations assumed by
them in accordance with the Charter.
Q. Mutual Defense Treaty Between the Philippines and the USA
1. The Mutual Defense Treaty Between the Republic of the
Philippines and the United States of America was signed on
August 30, 1951 in Washington, D.C. between representatives of
the Philippines and the United States. The overall accord contained
eight articles and dictated that both nations would support each other
if either the Philippines or the United States were to be attacked by an
external party.
2. As stated in article one of the treaty each party is to settle international
disputes in a peaceful manner so that the international peace is not
threatened and to refrain from the threat of the use of force in any
manner that is inconsistent with the purpose of the United Nations.
3. Article II states that each party either separately or jointly through
mutual aid may acquire, develop and maintain their capacity to resist
armed attack.
4. Article III states that from time to time the parties will consult one
another through the use of their secretaries of state, foreign ministers
or consuls in order to determine the appropriate measures of
implementation. The parties will also consult one another when either
of the party determines that their territorial integrity, political
independence or national security is threatened by armed attack in the
5. Article four states that an attack on either party will be acted upon in
accordance with their constitutional processes and that any armed
attack on either party will be brought to the attention of the United
Nations for immediate action.
6. Article five defines the meaning of attack and its purpose which
includes all attacks by a hostile power will be held as an attack on a

metropolitan area by both parties or on the island territories under its

jurisdiction in the Pacific or on its armed forces, public vessels or
aircraft in the Pacific.
7. Article six states that this treaty does not affect, impede, or shall not
be interpreted as affecting the rights and obligations of the parties
under the Charter of the United Nations.
8. Article seven states that the treaty shall be ratified in accordance with
the constitutional processes set delineated by the Constitution of the
United States and the Constitution of the Republic of the Philippines.
9. Lastly, article eight stipulates that the treaty terms are indefinite until
one or both parties wish to terminate the agreement. If the agreement
is to be terminated either party must give one year advanced notice.
R. Cases
1. Haw Pia VS. China Banking Corporation - G.R. No. L-554
April 9, 1948
FACTS: Haw Pia had previously contracted a loan from China Banking
Corporation in the amount of P5,103.35, which, according to Haw Pia, had been
completely paid, on different occasions from 1942 to 1944 through Bank of
Taiwan, Ltd., which was appointed by the Japanese Military authorities as
liquidator of China Banking Corp. With this, Haw Pia instituted an action against
China Banking Corp. to compel the bank to execute a deed of cancellation of
mortgage on the property used as security for the loan and to deliver its title.
However, upon service of summons, China Banking Corp. demanded from Haw
Pia for the payment of the sum of its indebtedness with interests, which also
constituted its counter claim in its answer.
RTC rendered a decision in favor of China Banking Corp. on the basis that there
was no evidence to show that Bank of Taiwan was authorized by China Banking
Corp. to accept Haw Pia's payment and that Bank of Taiwan, as an agency of the
Japanese invading army, was not authorized under the international law to
liquidate the business of China Banking Corp. As such, Haw Pia's payment to
Bank of Taiwan has not extinguished his indebtedness to China Banking Corp.
ISSUE: Whether the Japanese Military Administration had authority to order the
liquidation of the business of China Banking Corp. and to appoint Bank of Taiwan
as liquidator authorized as such to accept payment
HELD: YES. Under international law, the Japanese Military authorities had power
to order the liquidation of China Banking Corp. and to appoint and authorize
Bank of Taiwan as liquidator to accept the payment in question, because such
liquidation is not confiscation of the properties of China Banking Corp., but a
mere sequestration of its assets which required its liquidation. The sequestration
or liquidation of enemy banks in occupied territories is authorized expressly, not
only by the US Army and Naval Manual of Military Government and Civil Affairs,
but also similar manuals of other countries, without violating Art. 46 or other
articles of the Hague Regulations.
They do not amount to an outright confiscation of private property. The purpose
of such sequestration, as expounded in the Annual Report of the Office of the
Alien Custodian, is that enemy-owned property can be used to further the

interest of the enemy and to impede their war efforts. All enemy controlled
assets can be used to finance propaganda, espionage, and sabotage in these
countries or in countries friendly to their cause. It is presumed that Japan, in
sequestering and liquidating China Banking Corp., must have acted in
accordance, either with her own Manual of the Army and Navy and Civil Affairs
OR with her Trading with the Enemy Act, and even if not, it being permitted to
the Allied Nations, specially the US and England, to sequestrate, impound, and
block enemy properties found within their own domain or in enemy territories
occupied during the war by their armed forces, and it not being contrary to
Hague Regulations or international law, Japan had also the right to do the same
in the Philippines by virtue of the international law principle that "what is
permitted to one belligerent is also allowed to the other."
Taking these into consideration, it appears that Japan did not intend to confiscate
or appropriate the assets of said banks or the debts due them from their debtors.
The fact that the Japanese Military authorities failed to pay the enemy banks the
balance of the money collected by the Bank of Taiwan from the debtors of the
said banks, did not and could not change the sequestration by them of the
bank's assets during the war, into an outright confiscation thereof. It was
physically impossible for the Japanese Military authorities to do so because they
were forcibly driven out of the Philippines, following the readjustment of rights of
private property on land seized by the enemy provided by the Treaty of Versailles
and other peace treaties entered into at the close of WWI. The general principles
underlying such arrangements are that the owners of properties seized are
entitled to receive compensation for the loss or damage inflicted on their
property by the emergency war measures taken by the enemy. Since Japan war
notes were issued as legal tender, Japan was bound to indemnify the aggrieved
banks for the loss or damage on their property, in terms of Phil. Pesos of US $.
Since the Japanese Military Forces had power to sequestrate and impound the
assets of China Banking Corp. and to appoint Bank of Taiwan as liquidator, it
follows that payments of Haw Pia to Bank of Taiwan extinguished his obligations
to China Banking Corp.
2. Banaag VS. Singson Encarnacion G.R. No. L-493

April 19,

FACTS: Santiago Banaag prayed for a declaratory judgment under the provisions
of Rule 66, upholding validity of a contract of lease executed in his favor on June
3, 1943. Petitioner then contends that said contract should be declared valid for
the whole period of five years therein stipulated, from July 1, 1943, to June 30,
1948, while respondents maintain the theory that the contract or concession
should be declared terminated as of the date of the liberation of the Province of
Batangas or that at least, subject to suspension or cancellation at the will of the
Secretary of Agriculture and Commerce or of any person who may competently
act in his behalf.
Petitioner advances the theory that the Executive Commission during Japanese
occupation, upon whose authority the concession and adjudication of the Pansipit

fisheries were granted to him was a de facto government and under certain
limitation, obligation assumed by it in behalf of the country, will in general, be
respected by the government de jure when restored.
Respondent allege that the deed of lease granted to petitioner on July 3, 1943,
even if valid at its inception, cannot bind the Government of the Philippines, not
only because it was not a party thereto, but because the Executive Commission
was merely an instrumentality of the Japanese forces of occupation and as such
must be regarded only as administration and usufructuary of the public building
real estate, forest, and agricultural works situated in the occupied country, and
that the deed of lease in question should be deemed terminated with the
establishment of the Commonwealth upon the principle that a government of
occupation can let lands and buildings and make contracts in reference to them
only for such time as it is in occupation "may be suspended or cancelled at any
time as the circumstances demand and it should be presented upon the demand
of competent authorities."
ISSUE: Whether or not Mr. Banaag has the right to continue in occupying the
HELD: NO. The said deed of lease having expressly provided that the concession
"may suspended or cancelled at any time as the circumstances demand" and
no one question the authority of the municipality of Taal and Lemery, to which
the Pansipit fisheries belong, to suspend or cancel the deed of lease in behalf of
the Philippines Government and it appearing that said municipalities have
actually demanded from petitioner the return of the administration and
occupation of said fisheries since August 17, 1945, it is evident that petitioner
lost since then his right to continue administering and occupying said fisheries.
The deed of lease executed on June 3, 1943, by Florencio Tamesis, Director of
Forestry and Fishery, in favor of petitioner Santiago Banaag is declared cancelled
and without effect since the liberation of the Province of Batangas or, at lease,
since August 17, 1945.
Yamashita vs Styer G.R. No. L-129 December 19, 1945
FACTS: Petitioner Tomoyuki Yamashita, the commanding general of the 14th
army group of the Japanese Imperial Army in the Philippines, after his surrender
became a prisoner of war of the United States of America but was later removed
from such status and placed in confinement as an accused war criminal charged
before an American Military Commission constituted by respondent Lieutenant
General Styer, Commanding General of the United States Army Forces, Western
Filing for habeas corpus and prohibition against respondent, he asks that he be
reinstated to his former status as prisoner of war, and that the Military
Commission be prohibited from further trying him. He questions, among others,
the jurisdiction of said Military Commission.

1. Should the petitions for habeas corpus and prohibition be granted in this case?
2. Was the Military Commission validly constituted by respondent, therefore
having jurisdiction over the war crimes?
Ruling: 1. NO. 2. YES.
1. A petition for habeas corpus is improper when release of petitioner is not
sought. It seeks no discharge of petitioner from confinement but merely his
restoration to his former status as a prisoner of war, to be interned, not confined.
The relative difference as to the degree of confinement in such cases is a matter
of military measure, disciplinary in character, beyond the jurisdiction of civil
courts. Prohibition cannot issue against one not made party respondent. Neither
may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The
Military Commission is not made party respondent in this case, and although it
may be acting, as alleged, without jurisdiction, no order may be issued in these
case proceedings requiring it to refrain from trying the petitioner.
The Court further ruled that it has no jurisdiction to entertain the petition even if
the commission be joined as respondent. As it has said, in Raquiza vs. Bradford
(pp. 50, 61, ante), . . . an attempt of our civil courts to exercise jurisdiction over
the United States Army before such period (state of war) expires, would be
considered as a violation of this countrys faith, which this Court should not be
the last to keep and uphold.
2. Under the laws of war, a military commander has an implied power to appoint
and convene a military commission. This is upon the theory that since the power
to create a military commission is an aspect of waging war, military commanders
By the Articles of War, and especially Article 15, the Congress of the United
States has explicitly provided, so far as it may constitutionally do so, that military
tribunals shall have jurisdiction to try offenders or offenses against the laws of
war in appropriate cases.