At the end of World War II, General Tomoyuki Yamashita commanded part of the Japanese Army in the Philippines, where his subordinates tortured, raped, and killed thousands of Filipino civilians. After the war ended, the United States held Yamashita responsible for these atrocities and tried him in a military commission that lacked many of the procedural and evidentiary protections customary to courts-martial and civilian criminal trials. In a split decision, the Supreme Court upheld his conviction. The Court held that the power to convene a military commission to try violations of the laws of war extended after the cessation of hostilities, and that Yamashita’s commission had power to try him for command responsibility because that was a violation of the laws of war.
Although this case was not cited much after the end of World War II, its holdings experienced a resurgence of importance beginning in the 1990s. As to command responsibility, In re Yamashita was the first instance in which a commander had been held responsible for his subordinates’ violations of the laws of war. The case served as the beginning of the development of command responsibility under international law, eventually being incorporated into the Geneva Conventions, applied in the International Criminal Tribunal for the Former Yugoslavia, and adopted by the International Criminal Court in 2002.
As to the authority of military commissions, In re Yamashita was part of a quartet of World War II-era cases (in concert with Ex Parte Quirin (LINK), Hirota v. MacArthur (LINK), and Johnson v. Eisentrager (LINK)) upon which the Bush Administration relied to defend its trials of Guantanamo detainees by military commissions. The Bush Administration argued that In re Yamashita recognized the trial of enemy combatants as a fundamental incident of war and that Congress’s 2001 Authorization for the Use of Military Force (LINK to 2001 AUMF) thus empowered the President to establish military commissions for trying Guantanamo detainees. The Supreme Court in Hamdan v. Rumsfeld (LINK) disagreed, instead interpreting In re Yamashita as a limitation on the President’s power to establish military commissions absent a violation of the laws of war or specific congressional authorization. There, Justice Stevens observed that In re Yamashita had been “stripped of its precedential value.”
The Supreme Court of the Commonwealth of the Philippines denied Yamashita’s petitions for writs of habeas corpus and prohibition, and Yamashita sought review of this denial in the U.S. Supreme Court by filing a petition for certiorari. Yamashita also directly applied in the Supreme Court for leave to file a petition for a writ of habeas corpus and a petition for a writ of prohibition. During the pendency of this case, the Philippine Islands were still an American territory, and the Supreme Court had statutory jurisdiction to hear cases arising in the Philippines under 28 U.S.C. § 349 (1940).
Near the end of World War II, General Tomoyuki Yamashita commanded the Imperial Japanese Army’s Fourteenth Army Group, which was stationed primarily in the Philippine Islands. His troops there “committ[ed] brutal atrocities,” raping, torturing, and killing thousands of Filipino citizens between October 9, 1944, and September 2, 1945. These atrocities allegedly occurred as part of Yamashita’s “deliberate plan and purpose to massacre and exterminate a large part of the civilian population of Batangas Province, and to devastate and destroy public, private, and religious property.”
On September 3, 1945, Yamashita surrendered to United States forces and subsequently became a prisoner of war. The United States charged Yamashita with violating the laws of war by “disregarding and failing to discharge his duty as commander to control the operations of members of his command” by allowing them to “commit brutal atrocities against people of the United States and of its allies and dependencies, particularly in the Philippines.” U.S. General Styer, the commanding general of the United States Army Forces for the Western Pacific, appointed a military commission of five Army officers to try Yamashita.
Yamashita’s attorneys argued that Yamashita was unaware of and did not order his subordinates’ acts and that neither United States military law nor the international laws of war recognized command responsibility in such a situation. Therefore, his attorneys concluded, the military commission lacked jurisdiction because Yamashita’s charges were not violations of the laws of war. The commission rejected Yamashita’s argument of ignorance, relying on the widespread nature of the atrocities to impute knowledge to Yamashita.
Yamashita’s case proceeded to trial, which lasted two months, from October to December 1945, and involved the testimony of more than 286 witnesses. The military commission found Yamashita guilty on December 7, 1945, and sentenced him to death by hanging.
Yamashita petitioned the Supreme Court of the Philippine Islands for a writ of habeas corpus, which was denied on limited jurisdictional grounds. He then sought review in the United States Supreme Court, which held that the military commission had authority to try Yamashita for command responsibility.
Following the United States Supreme Court’s decision, Yamashita turned to President Harry Truman for clemency, but President Truman decided not to intervene. Yamashita was hanged in the Philippines in February 1946. Two and a half years later, the International Military Tribunal for the Far East found Yamashita’s Chief of Staff, Akira Muto, to “share responsibility for these gross breaches of the Laws of War” because Muto was “in a position to influence policy.” Like Yamashita, Muto was hanged.
Writing for the majority, Chief Justice Stone addressed two questions: whether the military commission was lawfully established and, if so, whether the commission could lawfully try Yamashita after hostilities had ceased for his failure to stop his subordinates from committing violations of the laws of war
The majority held that the military commission was lawfully established by the President and Congress, relying heavily on Ex Parte Quirin (LINK). The President had instructed his commanders to “proceed with the trial, before appropriate military tribunals, of such Japanese war criminals ‘as have been or may be apprehended.’” General Styer, who had command over the Philippines, had validly ordered the creation of the military commission. Congress had constitutional power to “define and punish . . . Offenses against the Law of Nations,” and by enacting the Articles of War (LINK TO 10 U.S.C. §§ 1471–1593), Congress had exercised its Define and Punish Power by statutorily authorizing the trial of enemy combatants via military commissions for violations of the laws of war. Yamashita’s military commission was therefore authorized by both the President and Congress.
Moreover, the commission did not lose its authority to try Yamashita simply because hostilities had ended. The majority held that Congress’s “war power, from which the commission derives its existence, is not limited to victories in the field [of battle], but carries with it the inherent power to guard against the immediate renewal of the conflict and to remedy . . . the evils which the military operations have produced.” To hold otherwise would, the majority recognized, undermine the “practical administration of the system of military justice under the law of war” because the vast majority of offenders would not be apprehended and subjected to trial until after the cessation of hostilities. Consequently, Congress and the President had the constitutional authority to prosecute violations of the laws of war via military commission, at least until peace is “agreed upon or proclaimed.”
The majority further held that the military commission had authority to try Yamashita for his failure to prevent his subordinates’ violations of the laws of war. The military commission’s authority was limited to trials for violations of the laws of war. “The question, then, is whether 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 [his troops’ violations of the laws of war], . . . and whether [the commander] may be charged with personal responsibility for his failure to take such measures when violations result.” The majority answered that question in the affirmative. The majority reasoned that “the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.”
Yamashita could thus be tried for his failure to prevent his troops’ atrocities. But the Court did not decide whether the military commission correctly found Yamashita guilty. Rather, the majority limited its inquiry to the authority of the military commission to proceed; because it did have such authority, its verdict was “not subject to judicial review merely because [the commission may] have made a wrong decision on disputed facts.” “[C]orrection of [the military tribunal’s] errors of decision is not for the courts but for the military authorities which are along authorized to review their decisions.”
Lastly, the Court held that the evidentiary and procedural protections guaranteed by the Geneva Conventions, Congress’s Articles of War, and the Fifth Amendment of the United States Constitution did not apply to Yamashita’s trial. The Articles of War applied only to trials of American personnel, and the relevant portions of the Geneva Conventions applied only to trials for crimes committed after capture. And in any event, the majority concluded that “the commission’s rulings on evidence and on the mode of conducting [its] proceedings against [Yamashita] are not reviewable by the courts, but only by the reviewing military authorities.” Based on this assessment, the Court declined to consider whether the Fifth Amendment’s guarantee of due process applied to Yamashita’s trial.
Justice Murphy’s dissent. Justice Murphy wrote a dissent, which argued for a guarantee of Fifth Amendment due process rights to “‘any person’ who is accused of a crime by the Federal Government or any of its agencies.”
Justice Murphy also provided a more detailed factual analysis of the situation facing Yamashita and the forces under his command from 1944-1945, amid the U.S.military’s robust and effective campaign to retake the Philippines. Under these circumstances, where Yamashita exercised diminishing control over his forces, Murphy noted that “[i]nternational law makes no attempt to define the duties of a commander of an army under constant and overwhelming assault; nor does it impose liability under such circumstances.” Justice Murphy continued his dissent with a discussion about the obligations and liabilities of commanders in the field during wartime.
Justice Rutledge’s dissent. Justice Rutledge also dissented, describing the procedural due process failures which resulted in the conviction of Yamashita. Justice Rutledge agreed with the conclusion reached by Justice Murphy, but focused his dissent on the “constitution of the commission and other matters taking place in the course of the proceedings, relating chiefly to the denial of reasonable opportunity to prepare petitioner’s defense and the sufficiency of the evidence, together with serious questions of admissibility, to prove on offense, all going as I think to the commission’s jurisdiction.”
Major Commentary and Academic Literature:
Hamdan v. Rumsfeld
Ex Parte Quirin
Articles of War (LINK TO 10 U.S.C. §§ 1471–1593)
Hirota v. MacArthur
Johnson v. Eisentrager
2001 Authorization for the Use of Military Force