In re Yamashita

As I said in the Manila Supreme Court that I have done with my all capacity, so I don’t ashame in front of the gods for what I have done when I have died. But if you say to me ‘you do not have any ability to command the Japanese Army’ I should say nothing for it, because it is my own nature. Now, our war criminal trial going under your kindness and right. I know that all your American and American military affairs always has tolerant and rightful judgment. When I have been investigated in Manila court I have had a good treatment, kindful attitude from your good natured officers who protected me all the time. I never forget for what they have done for me even if I had died. I don’t blame my executioner. I’ll pray the gods bless them. Please send my thankful word to Col. Clarke and Lt. Col. Feldhaus, Lt. Col. Hendrix, Maj. Guy, Capt. Sandburg, Capt. Reel, at Manila court, and Col. Arnard. I thank you.

Yamashita’ s last statement, through a translator, on the gallows.  February 23, 1946

General Tomoyuki Yamashita won early fame in World War II by leading the conquest of Malaya.  With inferior forces he decisively defeated the British and earned the popular title of Tiger of Malaya.  Troops under his command did engage in massacres and looting, but Yamashita, unlike most Japanese commanders, severely punished the troops involved, up to and including execution of the guilty.  His humane attitude towards prisoners placed him at odds with the Japanese government, and he spent much of the war in virtual exile in Manchukuo commanding the First Area Army.  Worsening Japanese military fortunes caused him to be placed in command of the Philippines, ten days before MacArthur and his army returned.  Yamashita conducted a skillful defense of the Philippines, marred by massive atrocities against civilians in Manila.  It must be noted that Rear Admiral Sanji Iwabuchi commanded the forces defending in Manila.  Yamashita had ordered the evacuation of Manila which Iwabuchi disobeyed, just as his men disobeyed Yamashita’s standing orders against ill treatment of civilians.

Yamashita was put on trial for war crimes in Manila from October 29, 1945-December 7, 1945 by an American military tribunal.  The principal accusation was that he had failed to keep his troops in the Philippines under control and that as a result he was responsible for their crimes.  This was a novel theory of criminal responsibility either under American military or civilian jurisprudence as his military defense counsel pointed out time and again.  Yamashita was impressed by the dedication and zeal of his defense counsel and stated several times that his respect for the United States had been reaffirmed by their efforts.

Behind the scenes MacArthur expressed impatience at the length of the trial, clearly wanting a quick guilty verdict.  When Yamashita was found guilty and sentenced to death, he swiftly affirmed the verdict and sentence when it was appealed to him.  Yamashita’s defense team then appealed to the US Supreme Court. The Supreme Court, In re Yamashita, 327 US 1, rejected the petitions for habeas corpus and writ of prohibition ruling:

It thus appears that the order convening the commission was a lawful order, that the commission was lawfully constituted, that petitioner was charged with violation of the law of war, and that the commission had authority to proceed with the trial, and, in doing so, did not violate any military, statutory, or constitutional command. We have considered, but find it unnecessary to discuss, other contentions which we find to be without merit. We therefore conclude that the detention of petitioner for trial and his detention upon his conviction, subject to the prescribed review by the military authorities, were lawful, and that the petition for certiorari, and leave to file in this Court petitions for writs of habeas corpus and prohibition should be, and they are

Denied.

Justices Murphy and Rutledge wrote memorable dissents:

Justice Murphy:

The failure of the military commission to obey the dictates of the due process requirements of the Fifth Amendment is apparent in this case. The petitioner was the commander of an army totally destroyed by the superior power of this nation. While under heavy and destructive attack by our forces, his troops committed many brutal atrocities and other high crimes. Hostilities ceased, and he voluntarily surrendered. At that point, he was entitled, as an individual protected by the due process clause of the Fifth amendment, to be treated fairly and justly according to the accepted rules of law and procedure. He was also entitled to a fair trial as to any alleged crimes, and to be free from charges of legally unrecognized crimes that would serve only to permit his accusers to satisfy their desires for revenge.

A military commission was appointed to try the petitioner for an alleged war crime. The trial was ordered to be held in territory over which the United States has complete sovereignty. No military necessity or other emergency demanded the suspension of the safeguards of due process. Yet petitioner was rushed to trial under an improper charge, given insufficient time to prepare an adequate defense, deprived of the benefits of some of the most elementary rules of evidence, and summarily sentenced to be hanged. In all this needless and unseemly haste, there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity, or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the acts of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge. This indictment, in effect, permitted the military commission to make the crime whatever it willed, dependent upon its biased view as to petitioner’s duties and his disregard thereof, a practice reminiscent of that pursued in certain less respected nations in recent years.

In my opinion, such a procedure is unworthy of the traditions of our people or of the immense sacrifices that they have made to advance the common ideals of mankind. The high feelings of the moment doubtless will be satisfied. But in the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today. No one in a position of command in an army, from sergeant to general, can escape those implications. Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision. But even more significant will be the hatred and ill will growing out of the application of this unprecedented procedure. That has been the inevitable effect of every method of punishment disregarding the element of personal culpability. The effect in this instance, unfortunately, will be magnified infinitely, for here we are dealing with the rights of man on an international level. To subject an enemy belligerent to an unfair trial, to charge him with an unrecognized crime, or to vent on him our retributive emotions only antagonizes the enemy nation and hinders the reconciliation necessary to a peaceful world.

Justice Rutledge:

Not with ease does one find his views at odds with the Court’s in a matter of this character and gravity. Only the most deeply felt convictions could force one to differ. That reason alone leads me to do so now, against strong considerations for withholding dissent.

More is at stake than General Yamashita’s fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law. In this stage of war’s aftermath, it is too early for Lincoln’s great spirit, best lighted in the Second Inaugural, to have wide hold for the treatment of foes. It is not too early — it is never too early — for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men — that is, of all men, whether citizens, aliens, alien enemies, or enemy belligerents. It can become too late.

This long held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered. If we need not or cannot be magnanimous, we can keep our own law on the plane from which it has not descended hitherto and to which the defeated foes’ never rose.

With all deference to the opposing views of my brethren, whose attachment to that tradition needless to say is no less than my own, I cannot believe in the face of this record that the petitioner has had the fair trial our Constitution and laws command. Because I cannot reconcile what has occurred with their measure, I am forced to speak. At bottom, my concern is that we shall not forsake in any case, whether Yamashita’s or another’s, the basic standards of trial which, among other guaranties, the nation fought to keep; that our system of military justice shall not, alone among all our forms of judging, be above or beyond the fundamental law or the control of Congress within its orbit of authority, and that this Court shall not fail in its part under the Constitution to see that these things do not happen.

MacArthur denied the personal appeal to him of General Yamashita’s wife that he be executed by firing squad as a soldier rather than hanged like a felon.