IN RE YAMASHITA, 327 U. S.

1
(1946)
US Supreme Court Decisions On-Line> Volume 327 > IN RE
YAMASHITA, 327 U. S. 1 (1946)

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 chanroblesvirtualawlibrary
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 chanroblesvirtualawlibrary

Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions

upon the procedure to be followed in such trial. Pp. 327 U.
S. 19-20.

(b) Article 63 of the Geneva Convention of 1929, which

provides that

"Sentence may be pronounced against a prisoner of war

only by the same courts and according to the same
procedure as in the case of persons belonging to the armed
forces of the detaining Power,"

does not require that Articles 25 and 38 of the Articles of

War be applied in the trial of the petitioner. Article 63 refers
to sentence "pronounced against a prisoner of war" for an
offense committed while a prisoner of war, and not for a
violation of the law of war committed while a combatant. P.
327 U. S. 20.

(c) The Court expresses no opinion on the question of the

wisdom of considering such evidence as was received in
this proceeding, nor on the question whether the action of a
military tribunal in admitting evidence which Congress or
controlling military commanthis proceeding, nor on the
question whether the action of a military tribunal in
admitting evidence which Congress or controlling military
commanthis 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. chanroblesvirtualawlibrary

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.