G.R. No.

L-129 December 19, 1945

TOMOYUKI YAMASHITA, petitioner,

vs.
WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific, respondent.

FACTS:

Tomoyuki Yamashita was a commanding general of the 14th army group of the Japanese Imperial Army in the
Philippines. He is charged before an American Military Commission with monstrous crimes committed against
the American and Filipino people. After his surrender, petitioner became a prisoner of war of the United States
of America. However, he was later removed from such status and placed in confinement as an accused war
criminal charged before an American Military Commission constituted by Lieutenant General Styer. Yamashita
then filed a petition for habeas corpus and prohibition with the Court against Lt. Gen. Wilhelm D. Styer, with the
prayer that he be reinstated to his former status as prisoner of war, and that the Military Commission be prohibited
from further trying him.

Yamashita argued that the Military Commission was not duly constituted, and, therefore, it is without jurisdiction;
that the Philippines cannot be considered as an occupied territory, and the Military Commission cannot exercise
jurisdiction therein; that Spain, the "protecting power" of Japan, has not been given notice of the implementing
trial against petitioner, contrary to the provisions of the Geneva Convention; that there is no charge of an offense
against the laws of war against the petitioner; and that the rules of procedure and evidence under which the
Military Commission purports to be acting denied the petitioner a fair trial.

ISSUES:

(1) Whether or not the petition for habeas corpus and prohibition is proper in the case?

(2) Whether or not the Military Commission had been validly constituted and therefore having jurisdiction over
war crimes?

RULINGS:

(1) NO. The Supreme Court held that the petition for habeas corpus is untenable. 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, and beyond the jurisdiction of civil courts.

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.

Furthermore, the Court has no jurisdiction to entertain the petition even if the commission be joined as
respondent. As held by the Court 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 country's faith, which this Court should not be the last to keep and uphold."

"An important incident to a conduct of a war is the adoption of measure by the military command not only to repel
and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to
thwart or impede our military effort to have violated the law of the war." The power to create a Military Commission
for the trial and punishment of war criminals is an aspect of waging war. And, a Military Commission "has
jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military
occupation, up to the effective date of a treaty agreement."

(2) YES. The Court held that the Military Commission had been validly constituted and it has jurisdiction both
over the person of the petitioner and over the offenses with which he is charged.

The Commission has been validly constituted by Lieutenant General Styer duly issued by General Douglas
MacArthur in accordance in authority vested in him. According to the Regulations Governing the Trial of the War
Criminals in the Pacific, the "trial of persons, units and organizations accused as a war criminals will be the
Military Commissions to be convened by or under the authority of the Commander in Chief, United States Army
Forces, Pacific."

Articles of War Nos. 12 and 15 recognized the "Military Commission" appointed by military command as an
appropriate tribunal for the trial and punishment of offenses against the law of the war not ordinarily tried by court
martial. This is upon the theory that since the power to create a Military Commission is an aspect of waging war,
Military Commanders have that power unless expressly withdrawn from them.

The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over
the offenses with which he is charged. It has jurisdiction over the person of the petitioner by reason of his having
fallen into the hands of the United States Army Forces. Under paragraph 347 of the Rules of the Land Warfare,
"the commanders ordering the commission of such acts, or under whose authority they are committed by their
troops, may be punished by the belligerent into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, Article 15 of the Articles of War has explicitly
provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or
offenses against the law of war in appropriate cases. Since petitioner is charged with crimes which include the
massacre and extermination of thousands of unarmed noncombatant civilians by cruel and brutal means, these
are offenses considered as war crimes and against the laws of the war.
THE REPUBLIC OF NICARAGUA V. THE UNITED STATES OF AMERICA

FACTS:

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. However later, the United States officially acknowledged its support
such as when it made specific provision for funds to be used by United States intelligence agencies for supporting
“directly or indirectly military or paramilitary operations in Nicaragua”.

On April 9, 1984, the Republic of Nicaragua filed a complaint with the International Court of Justice (ICJ).
It alleged that the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise
encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, had
violated its treaty obligations to Nicaragua under:

 Article 2 (4) of the United Nations Charter;

 Articles 18 and 20 of the Charter of the Organization of American States;
 Article 8 of the Convention on Rights and Duties of States;
 Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of Civil
Strife.

Nicaragua also alleged that the United States had breached international law by violating the sovereignty
of Nicaragua through armed attacks against Nicaragua by air, land and sea; efforts by direct and indirect means
to coerce and intimidate the Government of Nicaragua; using force and the threat of force against Nicaragua;
intervening in the internal affairs of Nicaragua; infringing upon the freedom of the high seas and interrupting
peaceful maritime commerce; and killing, wounding and kidnapping citizens of Nicaragua.

Meanwhile, 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 argued that the Court did not have jurisdiction, with
U.S. ambassador to the United Nations Jeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical,
semi-political body, which nations sometimes accept and sometimes don't." The United States at the
jurisdictional phase of the hearing, however, argued that that its actions were "primarily for the benefit of El
Salvador, and to help it to respond to an alleged armed attack by Nicaragua.

The United States claims to be exercising a right of collective self-defense, which it regards as a
justification of its own conduct towards Nicaragua. El Salvador joined the U.S. in their Declaration of Intervention
which it submitted on 15 August 1984, where it alleged itself the victim of an armed attack by Nicaragua, and
that it had asked the United States to exercise for its benefit the right of collective self-defence."

The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua.
It held that the U.S. had violated international law by supporting the Contras in their rebellion against the
Nicaraguan government and by mining Nicaragua's harbors. The Court found in its verdict that the United States
was "in breach of its obligations under customary international law not to use force against another State", "not
to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in
breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956." The United States then challenged the jurisdiction of the I.C.J
in the case when it was held responsible for illegal military and paramilitary activities in and against Nicaragua.

ISSUES:

(1) Whether or not the prohibition of the use of force and collective self-defence are issues regulated both
by customary international law and by treaties, in particular the United Nations Charter.

(2) Whether or not the recognition of the States of certain rules is sufficient to consider as being part of
customary international law, and as applicable as such to States.

(3) Whether or not the United States breached its customary international law obligations not to violate
the sovereignty of another State, not to intervene in its affairs, not to use force against another State and
not to interrupt peaceful maritime commerce?

(3) Whether or not the military and paramilitary activities that the United States undertook in and against
Nicaragua be justified as collective self-defense?

THE RULING OF THE COURT:

(1) YES. The Court ruled that the issues of the use of force and collective self-defence are regulated both
by customary international law and by treaties, in particular the United Nations Charter.

The Court concluded that both Parties accept a treaty-law obligation to 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. The Court has
however to be satisfied that there exists in customary law an opinio juris as to the binding character of
such abstention. It considers that this opinio juris may be deduced from, inter alia, the attitude of the
Parties and of States towards certain General Assembly resolutions, and particularly resolution 2625
(XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in Accordance with the Charter of the United Nations". Consent to such
resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of
force, regarded as a principle of customary international law, independently of the provisions, especially
those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.

(2) NO. The Court ruled that the mere fact that States declare their recognition of certain rules is not
sufficient for the Court to consider these as being part of customary international law, and as applicable
to those States. Bound as it is by Article 38 of its Stature to apply, inter alia, international custom “as
evidence of general practice accepted as law”, the Court may not disregard the essential role played by
general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement
suffices to make that rule a legal one, binding upon them; but in the field of customary international law,
the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court
must satisfy itself that the existence of the rule in the opinio juris of State is confirmed by practice.

In the present disputes, the Court, while exercising its jurisdiction only in respect of the application of the
customary rules of non-use of force and non-intervention, cannot disregard the fact that the Parties are
bound by these rules as a matter of treaty law and of customary international law. Furthermore, in the
present case, apart from the treaty commitments binding the Parties to the rules in question, there
are various instances of their having expressed recognition of the validity thereof as customary
international law in other ways.
The court said that in order to deduce the existence of customary rules, the Court deems it sufficient that
the conduct of the States should, in general, be consistent with such rules, and that instances of State
 conduct inconsistent with the given rule should generally have been treated as breaches of that rule, not
as indications of the recognition of a new rule.

The Court emphasized, as was observed in the North Sea Continental Shelf case, for a new customary
rule to be formed, not only must the acts concerned “ amount to a settled practice”, but they must
accompanied by the opinio juris sive necessitates. Either the States taking such action or other States
in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belef,
i.e., the existence of a subjective elements, is implicit in the very notion of the opinio juris sive
necessitates.”

(3) Yes. 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. 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 in international law, that 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,
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).

(4) No. The Court held that the United States could not justify its military and paramilitary activities
on the basis of collective self-defence.

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:
 Customary international law allows for exceptions to the prohibition on the use of force, which
includes the right to individual or collective self-defence. 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).

 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).