HURLAW Assignment
HURLAW Assignment
HURLAW Assignment
SUPREME COURT
Manila
EN BANC
said resource but are "so numerous that it is impracticable to bring them all before
the Court." The minors further asseverate that they "represent their generation as
well as generations yet unborn." 4 Consequently, it is prayed for that judgment be
rendered:
. . . ordering defendant, his agents, representatives and other
persons acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine archipelago
of 7,100 islands has a land area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and flourished since
time immemorial; scientific evidence reveals that in order to maintain a balanced
and healthful ecology, the country's land area should be utilized on the basis of a
ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying
up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks
and streams, (b) salinization of the water table as a result of the intrusion therein
of salt water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of
soil eroded estimated at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the endangering
and extinction of the country's unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities, including the disappearance
of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity of typhoon
winds which result from the absence of windbreakers, (i) the floodings of lowlands
and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for domestic uses,
irrigation and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration that
the same may be submitted as a matter of judicial notice. This notwithstanding,
they expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen
(16) million hectares of rainforests constituting roughly 53% of the
country's land mass.
9. Satellite images taken in 1987 reveal that there remained no
more than 1.2 million hectares of said rainforests or four per cent
(4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of
virgin old-growth rainforests are left, barely 2.8% of the entire
land mass of the Philippine archipelago and about 3.0 million
hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have
granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million hectares for
commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is
hereto attached as Annex "A".
Article II of the 1987 Constitution recognizing the right of the people to a balanced
and healthful ecology, the concept of generational genocide in Criminal Law and
the concept of man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover more
areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's nonimpairment clause, petitioners maintain that the same does not apply in this case
because TLAs are not contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any
relief is provided by law. They see nothing in the complaint but vague and
nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly addressed
to the executive or legislative branches of Government. They therefore assert that
the petitioners' resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA
remains effective for a certain period of time usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor cancelled unless the
holder has been found, after due notice and hearing, to have violated the terms of
the agreement or other forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the requisite hearing would be
violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant
and the present respondents did not take issue with this matter. Nevertheless, We
hereby rule that the said civil case is indeed a class suit. The subject matter of the
complaint is of common and general interest not just to several, but to all citizens
of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough
to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court
are present both in the said civil case and in the instant petition, the latter being
but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of their generation and
for the succeeding generations, file a class suit. Their personality to sue in behalf of
the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations. 10 Needless to say,
every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes,
at the same time, the performance of their obligation to ensure the protection of
that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration
and evaluation of the issues raised and arguments adduced by the parties, We do
not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting
to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
This right unites with the right to health which is provided for in
the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of
the people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation
aptly and fittingly stressed by the petitioners the advancement of which may
even be said to predate all governments and constitutions. As a matter of fact,
these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far
when all else would be lost not only for the present generation, but also for those to
come generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of
the plenary sessions of the 1986 Constitutional Commission, the following
exchange transpired between Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide
sanctions against all forms of pollution air,
water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the
correlative duty of not impairing the same and,
Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent Secretary
from receiving, accepting, processing, renewing or approving new timber licenses
for, save in cases of renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not entitled to it as a
matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Oposa vs. Factoran Case Digest (G.R. No. 101083, July 30, 1993)
FACTS:
The plaintiffs in this case are all minors duly represented and joined by their
parents. The first complaint was filed as a taxpayer's class suit at the Branch 66
(Makati, Metro Manila), of the Regional Trial Court, National capital Judicial
Region against defendant (respondent) Secretary of the Department of
Environment and Natural Reasources (DENR). Plaintiffs alleged that they are
entitled to the full benefit, use and enjoyment of the natural resource treasure that
is the country's virgin tropical forests. They further asseverate that they represent
their generation as well as generations yet unborn and asserted that continued
deforestation have caused a distortion and disturbance of the ecological balance
and have resulted in a host of environmental tragedies.
Plaintiffs prayed that judgement be rendered ordering the respondent, his agents,
representatives and other persons acting in his behalf to cancel all existing Timber
License Agreement (TLA) in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new TLAs.
Defendant, on the other hand, filed a motion to dismiss on the ground that the
complaint had no cause of action against him and that it raises a political question.
The RTC Judge sustained the motion to dismiss, further ruling that granting of the
relief prayed for would result in the impairment of contracts which is prohibited by
the Constitution.
Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and
asked the court to rescind and set aside the dismissal order on the ground that the
respondent RTC Judge gravely abused his discretion in dismissing the action.
Hence, the full protection thereof requires that no further TLAs should be renewed
or granted.
After careful examination of the petitioners' complaint, the Court finds it to be
adequate enough to show, prima facie, the claimed violation of their rights.
ISSUES:
(1) Whether or not the plaintiffs have a cause of action.
(2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of
contracts.
RULING:
mean that the newly passed law gave municipal governments the exclusive
jurisdiction to issue fishing privileges within their municipal waters because R.A.
7160 provides:
Sec. 149. Fishery Rentals, Fees and Charges.
(a) Municipalities shall have the exclusive authority to grant
fishery privileges in the municipal waters and impose rental fees
or charges therefor in accordance with the provisions of this
Section.
(b) The Sangguniang Bayan may:
(1) Grant fishing privileges to erect fish corrals,
oyster, mussel or other aquatic beds or bangus fry
areas, within a definite zone of the municipal
waters, as determined by it; . . . .
(2) Grant privilege to gather, take or catch bangus
fry, prawn fry or kawag-kawag or fry of other
species and fish from the municipal waters by
nets, traps or other fishing gears to marginal
fishermen free from any rental fee, charges or any
other imposition whatsoever.
xxx xxx xxx
Sec. 447. Power, Duties, Functions and Compensation. . . . .
xxx xxx xxx
(XI) Subject to the provisions of Book II of this
Code, grant exclusive privileges of constructing
fish corrals or fishpens, or the taking or catching
of bangus fry, prawn fry orkawag-kawag or fry of
any species or fish within the municipal waters.
xxx xxx xxx
Municipal governments thereupon assumed the authority to issue fishing
privileges and fishpen permits. Big fishpen operators took advantage of the
Hence, the herein petition for certiorari, prohibition and injunction, G.R. Nos.
120865-71, were filed by the Authority with this court. Impleaded as partiesrespondents are concerned regional trial courts and respective private parties, and
the municipalities and/or respective Mayors of Binangonan, Taguig and Jala-jala,
who issued permits for the construction and operation of fishpens in Laguna de
Bay. The Authority sought the following reliefs, viz.:
(A) Nullification of the temporary restraining order/writs of
preliminary injunction issued in Civil Cases Nos. 64125, 759 and
566;
(B) Permanent prohibition against the regional trial courts from
exercising jurisdiction over cases involving the Authority which is
a co-equal body;
(C) Judicial pronouncement that R.A. 7610 (Local Government
Code of 1991) did not repeal, alter or modify the provisions of R.A.
4850, as amended, empowering the Authority to issue permits for
fishpens, fishcages and other aqua-culture structures in Laguna de
Bay and that, the Authority the government agency vested with
exclusive authority to issue said permits.
By this Court's resolution of May 2, 1994, the Authority's consolidated petitions
were referred to the Court of Appeals.
In a Decision, dated June 29, 1995, the Court of Appeals dismissed the Authority's
consolidated petitions, the Court of Appeals holding that: (A) LLDA is not among
those quasi-judicial agencies of government whose decision or order are
appealable only to the Court of Appeals; (B) the LLDA charter does vest LLDA with
quasi-judicial functions insofar as fishpens are concerned; (C) the provisions of the
LLDA charter insofar as fishing privileges in Laguna de Bay are concerned had
been repealed by the Local Government Code of 1991; (D) in view of the aforesaid
repeal, the power to grant permits devolved to and is now vested with their
respective local government units concerned.
Not satisfied with the Court of Appeals decision, the Authority has returned to this
Court charging the following errors:
1. THE HONORABLE COURT OF APPEALS PROBABLY
COMMITTED AN ERROR WHEN IT RULED THAT THE
that there was no intent on the part of the legislature to repeal Republic Act No.
4850 and its amendments. The repeal of laws should be made clear and expressed.
It has to be conceded that the charter of the Laguna Lake Development Authority
constitutes a special law. Republic Act No. 7160, the Local Government Code of
1991, is a general law. It is basic in statutory construction that the enactment of a
later legislation which is a general law cannot be construed to have repealed a
special law. It is a well-settled rule in this jurisdiction that "a special statute,
provided for a particular case or class of cases, is not repealed by a subsequent
statute, general in its terms, provisions and application, unless the intent to repeal
or alter is manifest, although the terms of the general law are broad enough to
include the cases embraced in the special law." 3
Where there is a conflict between a general law and a special statute, the special
statute should prevail since it evinces the legislative intent more clearly than the
general statute. The special law is to be taken as an exception to the general law in
the absence of special circumstances forcing a contrary conclusion. This is because
implied repeals are not favored and as much as possible, effect must be given to all
enactments of the legislature. A special law cannot be repealed, amended or altered
by a subsequent general law by mere implication. 4
Thus, it has to be concluded that the charter of the Authority should prevail over
the Local Government Code of 1991.
Considering the reasons behind the establishment of the Authority, which are
environmental protection, navigational safety, and sustainable development, there
is every indication that the legislative intent is for the Authority to proceed with its
mission.
We are on all fours with the manifestation of petitioner Laguna Lake Development
Authority that "Laguna de Bay, like any other single body of water has its own
unique natural ecosystem. The 900 km lake surface water, the eight (8) major
river tributaries and several other smaller rivers that drain into the lake, the 2,920
km basin or watershed transcending the boundaries of Laguna and Rizal
provinces, greater portion of Metro Manila, parts of Cavite, Batangas, and Quezon
provinces, constitute one integrated delicate natural ecosystem that needs to be
protected with uniform set of policies; if we are to be serious in our aims of
attaining sustainable development. This is an exhaustible natural resource a very
limited one which requires judicious management and optimal utilization to
ensure renewability and preserve its ecological integrity and balance."
"Managing the lake resources would mean the implementation of a national policy
geared towards the protection, conservation, balanced growth and sustainable
development of the region with due regard to the inter-generational use of its
resources by the inhabitants in this part of the earth. The authors of Republic Act
4850 have foreseen this need when they passed this LLDA law the special law
designed to govern the management of our Laguna de Bay lake resources."
"Laguna de Bay therefore cannot be subjected to fragmented concepts of
management policies where lakeshore local government units exercise exclusive
dominion over specific portions of the lake water. The garbage thrown or sewage
discharged into the lake, abstraction of water therefrom or construction of fishpens
by enclosing its certain area, affect not only that specific portion but the entire 900
km of lake water. The implementation of a cohesive and integrated lake water
resource management policy, therefore, is necessary to conserve, protect and
sustainably develop Laguna de Bay." 5
The power of the local government units to issue fishing privileges was clearly
granted for revenue purposes. This is evident from the fact that Section 149 of the
New Local Government Code empowering local governments to issue fishing
permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the
heading, "Specific Provisions On The Taxing And Other Revenue Raising Power Of
Local Government Units."
On the other hand, the power of the Authority to grant permits for fishpens,
fishcages and other aqua-culture structures is for the purpose of effectively
regulating and monitoring activities in the Laguna de Bay region (Section 2,
Executive Order No. 927) and for lake quality control and management. 6 It does
partake of the nature of police power which is the most pervasive, the least
limitable and the most demanding of all State powers including the power of
taxation. Accordingly, the charter of the Authority which embodies a valid exercise
of police power should prevail over the Local Government Code of 1991 on matters
affecting Laguna de Bay.
There should be no quarrel over permit fees for fishpens, fishcages and other aquaculture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927
provides for the proper sharing of fees collected.
In respect to the question as to whether the Authority is a quasi-judicial agency or
not, it is our holding that, considering the provisions of Section 4 of Republic Act
No. 4850 and Section 4 of Executive Order No. 927, series of 1983, and the ruling
of this Court in Laguna Lake Development Authority vs. Court of Appeals, 231
SCRA 304, 306, which we quote:
xxx xxx xxx
As a general rule, the adjudication of pollution cases generally
pertains to the Pollution Adjudication Board (PAB), except in
cases where the special law provides for another forum. It must be
recognized in this regard that the LLDA, as a specialized
administrative agency, is specifically mandated under Republic
Act No. 4850 and its amendatory laws to carry out and make
effective the declared national policy of promoting and
accelerating the development and balanced growth of the Laguna
Lake area and the surrounding provinces of Rizal and Laguna and
the cities of San Pablo, Manila, Pasay, Quezon and Caloocan with
due regard and adequate provisions for environmental
management and control, preservation of the quality of human life
and ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a broad
grant of power and authority, the LLDA, by virtue of its special
charter, obviously has the responsibility to protect the inhabitants
of the Laguna Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes from the
surrounding areas. In carrying out the aforementioned declared
policy, the LLDA is mandated, among others, to pass upon and
approve or disapprove all plans, programs, and projects proposed
by local government offices/agencies within the region, public
corporations, and private persons or enterprises where such plans,
programs and/or projects are related to those of the LLDA for the
development of the region.
xxx xxx xxx
. . . . While it is a fundamental rule that an administrative agency
has only such powers as are expressly granted to it by law, it is
likewise a settled rule that an administrative agency has also such
powers as are necessarily implied in the exercise of its express
powers. In the exercise, therefore, of its express powers under its
charter, as a regulatory and quasi-judicial body with respect to
pollution cases in the Laguna Lake region, the authority of the
LLDA to issue a "cease and desist order" is, perforce, implied.
Otherwise, it may well be reduced to a "toothless" paper agency.
while the latter is a general law. It is basic in statutory construction that the
enactment of a later legislation which is a general law, cannot be construed to have
repealed a special law. The special law is to be taken as an exception to the general
law in the absence of special circumstances forcing a contrary conclusion.
In addition, the charter of the LLDA embodies a valid exercise of police power for
the purpose of protecting and developing the Laguna Lake region, as opposed to
the Local Government Code, which grants powers to municipalities to issue fishing
permits for revenue purposes.
Thus it has to be concluded that the charter of the LLDA should prevail over the
Local Government Code of 1991 on matters affecting Laguna de Bay.
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendantgovernment agencies to clean up, rehabilitate, and preserve Manila Bay, and
restore and maintain its waters to SB level (Class B sea waters per Water
Classification Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary
agency responsible for the conservation, management, development, and
proper use of the countrys environment and natural resources, and Sec. 19
of RA 9275, designating the DENR as the primary government agency
responsible for its enforcement and implementation, the DENR is directed
to fully implement its Operational Plan for the Manila Bay Coastal Strategy
for the rehabilitation, restoration, and conservation of the Manila Bay at
the earliest possible time. It is ordered to call regular coordination
meetings with concerned government departments and agencies to ensure
the successful implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of
1987 and Sec. 25 of the Local Government Code of 1991, the DILG, in
exercising the Presidents power of general supervision and its duty to
The DENR is further ordered to submit the names and addresses of persons and
companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan
that generate toxic and hazardous waste on or before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and Local
Government (DILG) shall order the Mayors of all cities in Metro Manila; the
Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan; and the
Mayors of all the cities and towns in said provinces to inspect all factories,
commercial establishments and private homes along the banks of the major river
systemssuch as but not limited to the Pasig-Marikina-San Juan Rivers, the
National Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the NavotasMalabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, and the Laguna De
Bayand other minor rivers and waterways within their jurisdiction that
eventually discharge water into the Manila Bay and the lands abutting it, to
determine if they have wastewater treatment facilities and/or hygienic septic tanks,
as prescribed by existing laws, ordinances, rules and regulations. Said local
government unit (LGU) officials are given up to September 30, 2011 to finish the
inspection of said establishments and houses.
In case of non-compliance, the LGU officials shall take appropriate action to
ensure compliance by non-complying factories, commercial establishments and
private homes with said law, rules and regulations requiring the construction or
installment of wastewater treatment facilities or hygienic septic tanks.
The aforementioned governors and mayors shall submit to the DILG on or before
December 31, 2011 their respective compliance reports which will contain the
names and addresses or offices of the owners of all the non-complying factories,
commercial establishments and private homes, copy furnished the concerned
environmental agency, be it the local DENR office or the Laguna Lake
Development Authority.
The DILG is required to submit a five-year plan of action that will contain
measures intended to ensure compliance of all non-complying factories,
commercial establishments, and private homes.
On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila
shall consider providing land for the wastewater facilities of the Metropolitan
Waterworks and Sewerage System (MWSS) or its concessionaires (Maynilad and
Manila Water, Inc.) within their respective jurisdictions.
(3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas
in Metro Manila, Rizal and Cavite that do not have the necessary wastewater
treatment facilities. Within the same period, the concessionaires of the MWSS shall
submit their plans and projects for the construction of wastewater treatment
facilities in all the aforesaid areas and the completion period for said facilities,
which shall not go beyond 2037.
On or before June 30, 2011, the MWSS is further required to have its two
concessionaires submit a report on the amount collected as sewerage fees in their
respective areas of operation as of December 31, 2010.
(4) The Local Water Utilities Administration is ordered to submit on or before
September 30, 2011 its plan to provide, install, operate and maintain sewerage and
sanitation facilities in said cities and towns and the completion period for said
works, which shall be fully implemented by December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of Fisheries and
Aquatic Resources, shall submit to the Court on or before June 30, 2011 a report on
areas in Manila Bay where marine life has to be restored or improved and the
assistance it has extended to the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga and Bataan in developing the fisheries and aquatic resources
in Manila Bay. The report shall contain monitoring data on the marine life in said
areas. Within the same period, it shall submit its five-year plan to restore and
improve the marine life in Manila Bay, its future activities to assist the
aforementioned LGUs for that purpose, and the completion period for said
undertakings.
The DA shall submit to the Court on or before September 30, 2011 the baseline
data as of September 30, 2010 on the pollution loading into the Manila Bay system
from agricultural and livestock sources.
(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports
the list of violators it has apprehended and the status of their cases. The PPA is
further ordered to include in its report the names, make and capacity of the ships
that dock in PPA ports. The PPA shall submit to the Court on or before June 30,
2011 the measures it intends to undertake to implement its compliance with
paragraph 7 of the dispositive portion of the MMDA Decision and the completion
dates of such measures.
The PPA should include in its report the activities of its concessionaire that collects
and disposes of the solid and liquid wastes and other ship-generated wastes, which
shall state the names, make and capacity of the ships serviced by it since August
2003 up to the present date, the dates the ships docked at PPA ports, the number
of days the ship was at sea with the corresponding number of passengers and crew
per trip, the volume of solid, liquid and other wastes collected from said ships, the
treatment undertaken and the disposal site for said wastes.
(7) The Philippine National Police (PNP) Maritime Group shall submit on or before
June 30, 2011 its five-year plan of action on the measures and activities it intends
to undertake to apprehend the violators of Republic Act No. (RA) 8550 or the
Philippine Fisheries Code of 1998 and other pertinent laws, ordinances and
regulations to prevent marine pollution in Manila Bay and to ensure the successful
prosecution of violators.
The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its
five-year plan of action on the measures and activities they intend to undertake to
apprehend the violators of Presidential Decree No. 979 or the Marine Pollution
Decree of 1976 and RA 9993 or the Philippine Coast Guard Law of 2009 and other
pertinent laws and regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA) shall submit to the
Court on or before June 30, 2011 the names and addresses of the informal settlers
in Metro Manila who, as of December 31, 2010, own and occupy houses, structures,
constructions and other encroachments established or built along the PasigMarikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways
and esteros, in violation of RA 7279 and other applicable laws. On or before June
30, 2011, the MMDA shall submit its plan for the removal of said informal settlers
and the demolition of the aforesaid houses, structures, constructions and
encroachments, as well as the completion dates for said activities, which shall be
fully implemented not later than December 31, 2015.
The MMDA is ordered to submit a status report, within thirty (30) days from
receipt of this Resolution, on the establishment of a sanitary landfill facility for
Metro Manila in compliance with the standards under RA 9003 or the Ecological
Solid Waste Management Act.
On or before June 30, 2011, the MMDA shall submit a report of the location of
open and controlled dumps in Metro Manila whose operations are illegal after
February 21, 2006,3 pursuant to Secs. 36 and 37 of RA 9003, and its plan for the
closure of these open and controlled dumps to be accomplished not later than
December 31, 2012. Also, on or before June 30, 2011, the DENR Secretary, as
Chairperson of the National Solid Waste Management Commission (NSWMC),
shall submit a report on the location of all open and controlled dumps in Rizal,
Cavite, Laguna, Bulacan, Pampanga and Bataan.
On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC
Chairperson, shall submit a report on whether or not the following landfills strictly
comply with Secs. 41 and 42 of RA 9003 on the establishment and operation of
sanitary landfills, to wit:
On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan shall submit the names and addresses of the
informal settlers in their respective areas who, as of September 30, 2010, own or
occupy houses, structures, constructions, and other encroachments built along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the
Imus (Cavite) River, the Laguna de Bay, and other rivers, connecting waterways
and esteros that discharge wastewater into the Manila Bay, in breach of RA 7279
and other applicable laws. On or before June 30, 2011, the DPWH and the
aforesaid LGUs shall jointly submit their plan for the removal of said informal
settlers and the demolition of the aforesaid structures, constructions and
encroachments, as well as the completion dates for such activities which shall be
implemented not later than December 31, 2012.
(9) The Department of Health (DOH) shall submit to the Court on or before June
30, 2011 the names and addresses of the owners of septic and sludge companies
including those that do not have the proper facilities for the treatment and disposal
of fecal sludge and sewage coming from septic tanks.
The DOH shall implement rules and regulations on Environmental Sanitation
Clearances and shall require companies to procure a license to operate from the
DOH.
The DOH and DENR-Environmental Management Bureau shall develop a toxic
and hazardous waste management system by June 30, 2011 which will implement
segregation of hospital/toxic/hazardous wastes and prevent mixing with municipal
solid waste.
On or before June 30, 2011, the DOH shall submit a plan of action to ensure that
the said companies have proper disposal facilities and the completion dates of
compliance.1avvphi1
(10) The Department of Education (DepEd) shall submit to the Court on or before
May 31, 2011 a report on the specific subjects on pollution prevention, waste
management, environmental protection, environmental laws and the like that it
has integrated into the school curricula in all levels for the school year 2011-2012.
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure
compliance of all the schools under its supervision with respect to the integration
of the aforementioned subjects in the school curricula which shall be fully
implemented by June 30, 2012.
(11) All the agencies are required to submit their quarterly reports electronically
using the forms below. The agencies may add other key performance indicators
that they have identified.
SO ORDERED.
1. The military commission appointed to try the petitioner was lawfully created.
usage, and by the terms of the surrender of the Japanese government. P. 327 U. S.
P. 327 U. S. 9.
13.
(a) Nature of the authority to create military commissions for the trial of enemy
3. The charge preferred against the petitioner was of a violation of the law of war.
combatants for offenses against the law of war, and principles governing the
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
be charged with personal responsibility for his failure to take such measures when
violations result. Pp. 327 U. S. 14, 327 U. S. 16.
(c) The order creating the military commission was in conformity with the Act of
Congress (10 U.S.C. 1471-1593) sanctioning
(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
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
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
did not foreclose their right to contend that the Constitution or laws of the United
Page 327 U. S. 3
7. The Court does not appraise the evidence on which the petitioner here was
convicted. P. 327 U. S. 17.
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.
does not require that Articles 25 and 38 of the Articles of War be applied in the
"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
of war" for an offense committed while a prisoner of war, and not for a violation of
soon as possible, and always before the date set for the opening of the trial,"
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
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.
5. On an application for habeas corpus, the Court is not concerned with the guilt or
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
October 8, 1945, petitioner, after pleading not guilty to the charge, was held for
No. 672. Petition for certiorari to review an order of the Supreme Court of the
counsel. Throughout the proceedings which followed, including those before this
writs of habeas corpus and prohibition likewise challenging the jurisdiction and
resourcefulness and their proper zeal for the defense with which they were
charged.
petitioner. Denied.
On the same date, a bill of particulars was filed by the prosecution, and the
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
No. 61 Miscellaneous is an application for leave to file a petition for writs of habeas
corpus and prohibition in this Court. No. 672 is a petition for certiorari to review
an order of the Supreme Court of the the Philippines (28 U.S.C. 349) denying
petitioner's application to that court for writs of habeas corpus and prohibition. As
both applications raise substantially like questions, and because of the importance
and novelty of some of those presented, we set the two applications down for oral
argument as one case.
Page 327 U. S. 5
From the petitions and supporting papers, it appears that, prior to September 3,
1945, petitioner was the Commanding General of the Fourteenth Army Group of
reasons which are now urged as showing that the military commission was without
surrendered to and became a prisoner of war of the United States Army Forces in
Baguio, Philippine Islands. On September 25th, by order of respondent, Lieutenant
(a) That the military commission which tried and convicted petitioner was not
General Wilhelm D. Styer, Commanding General of the United States Army Forces,
lawfully created, and that no military commission to try petitioner for violations of
Western Pacific, which command embraces the Philippine Islands, petitioner was
the law of war could lawfully be convened after the cessation of hostilities between
served with a charge prepared by the Judge Advocate General's Department of the
(b) that the charge preferred against petitioner fails to charge him with a violation
and nature of the authority to create military commissions for the trial of enemy
combatants for offenses against the law of war. We there pointed out that
(c) that the commission was without authority and jurisdiction to try and convict
Congress, in the exercise of the power conferred upon it by Article I, 8, Cl. 10, of
petitioner, because the order governing the procedure of the commission permitted
the Constitution to "define and punish . . . Offenses against the Law of Nations . . . "
of which the law of war is a part, had, by the Articles of War (10 U.S.C. 1471-
evidence, and because the commission's rulings admitting such evidence were in
violation of the 25th and 38th Articles of War (10 U.S.C. 1496, 1509) and the
Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair trial in
for the trial and punishment of offenses against the law of war. Article 15 declares
that
(d) that the commission was without authority and jurisdiction in the premises
because of the failure to give advance notice of petitioner's trial to the neutral
the law of war, may be triable by such military commissions . . . or other military
On the same grounds, the petitions for writs of prohibition set up that the
commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing argument, denied the
petition for habeas corpus presented to it on the ground, among others, that its
jurisdiction was limited to an inquiry as to the jurisdiction of the commission to
place petitioner on trial for the offense charged, and that the commission, being
validly constituted
Page 327 U. S. 7
by the order of General Styer, had jurisdiction over the person of petitioner and
over the trial for the offense charged.
tribunals."
See a similar provision of the Espionage Act of 1917, 50 U.S.C. 38. Article 2
includes among those persons subject to the Articles of War the personnel of our
own military establishment. But this, as Article 12 indicates, does not exclude from
the class of persons subject to trial by military commissions "any other person who,
by the law of war, is subject to trial by military tribunals" and who, under Article
12, may be tried by court martial, or, under Article 15, by military commission.
We further pointed out that Congress, by sanctioning trial of enemy combatants for
violations of the law of war by military commission, had not attempted to codify
the law of war or to mark its precise boundaries. Instead, by Article 15, it had
incorporated, by reference, as within the
Page 327 U. S. 8
Page 327 U. S. 9
and deemed applicable by the courts, and as further defined and supplemented by
McDonald, 258 U. S. 416. Cf. Matter of Moran, 203 U. S. 96, 203 U. S. 105.
the Hague Convention, to which the United States and the Axis powers were
parties.
Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we hold now, that
Congress, by sanctioning trials of enemy aliens by military commission for offenses
against the law of war, had recognized the right of the accused to make a
habeas corpus, we are not concerned with the guilt or innocence of the petitioners.
defense. Cf. Ex parte Kawato, 317 U. S. 69. It has not foreclosed their right to
We consider here only the lawful power of the commission to try the petitioner for
contend that the Constitution or laws of the United States withhold authority to
the offense charged. In the present cases, it must be recognized throughout that the
proceed with the trial. It has not withdrawn, and the Executive branch of the
military tribunals which Congress has sanctioned by the Articles of War are not
government could not, unless there was suspension of the writ, withdraw from the
courts whose rulings and judgments are made subject to review by this
courts the duty and power to make such inquiry into the authority of the
Court. See Ex parte Vallandingham, 1 Wall. 243; In re Vidal, 179 U. S. 126; cf. Ex
parte Quirin, supra, 317 U. S. 39. They are tribunals whose determinations are
reviewable by the military authorities either as provided in the military orders
constituting such tribunals or as provided by the Articles of War. Congress
conferred on the courts no power to review their determinations save only as it has
granted judicial power "to grant writs of habeas corpus for the purpose of an
inquiry into the cause of the restraint of liberty." 28 U.S.C. 451, 452. The courts
may inquire whether the detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have lawful authority to hear,
decide, and condemn, their action is not subject to judicial review merely because
they have made a wrong decision on disputed facts. Correction of their errors of
decision is not for the courts, but for the military authorities, which are alone
could thus be conferred on the commission to place petitioner on trial after the
those who have visited cruelties upon prisoners." U.S. Dept. of State Bull., Vol.
cessation of hostilities between the armed forces of the United States and Japan.
XIII, No. 318, pp. 137, 138. This Declaration was accepted by the Japanese
government by its note of August 10, 1945. U.S. Dept. of State Bull., Vol. XIII, No.
The authority to create the Commission. General Styer's order for the appointment
320, p. 205.
of the commission was made by him as Commander of the United States Armed
Forces, Western Pacific. His command includes, as part
By direction of the President, the Joint Chiefs of Staff of the American Military
Forces, on September 12, 1945, instructed General MacArthur, Commander in
Page 327 U. S. 10
Chief, United States Army Forces, Pacific, to proceed with the trial, before
of a vastly greater area, the Philippine Islands, where the alleged offenses were
Page 327 U. S. 11
committed, where petitioner surrender as a prisoner of war, and where, at the time
of the order convening the commission, he was detained as a prisoner in custody of
appropriate military tribunals, of such Japanese war criminals "as have been or
and its sanction of their use in trying offenses against the law of war to which we
General Styer was specifically directed to proceed with the trial of petitioner upon
the charge here involved. This order was accompanied by detailed rules and
regulations which General MacArthur prescribed for the trial of war criminals.
These regulations directed, among other things, that review of the sentence
martial, as was General Styer, who had been vested with that power by order of the
imposed by the commission should be by the officer convening it, with "authority
War 8.
sentence imposed," and directed that no sentence of death should be carried into
effect until confirmed by the Commander in Chief, United States Army Forces,
Here, the commission was not only created by a commander competent to appoint
Pacific.
it, but his order conformed to the established policy of the Government and to
higher military commands authorizing his action. In a proclamation of July 2, 1942
It thus appears that the order creating the commission for the trial of petitioner
(56 Stat. 1964), the President proclaimed that enemy belligerents who, during time
was authorized by military command, and was in complete conformity to the Act of
of war, enter the United States, or any territory possession thereof, and who violate
Congress sanctioning the creation of such tribunals for the trial of offenses against
the law of war, should be subject to the law of war and to the jurisdiction of
the law of war committed by enemy combatants. And we turn to the question
whether the authority to create the commission and direct the trial by military
declared that " . . . stern justice shall be meted out to all war criminals, including
their cessation could the greater number of offenders and the principal ones be
military commander not only to repel and defeat the enemy, but to seize and
supra, 317 U. S. 28. The trial and punishment of enemy combatants who have
committed violations of the law of war is thus not only a part of the conduct of war
before the formal state of war has ended. [Footnote 1] In our own military history,
Page 327 U. S. 13
there have been numerous instances in which offenders were tried by military
commission after the cessation of hostilities and before the proclamation of peace,
for offenses against the law of war committed before the cessation of hostilities.
[Footnote 2]
The extent to which the power to prosecute violations of the law of war shall be
exercised before peace is declared rests not with the courts, but with the political
branch of the Government, and may itself be governed by the terms of an armistice
or the treaty of peace. Here, peace has not been agreed upon or proclaimed. Japan,
by her acceptance of the Potsdam Declaration and her surrender, has acquiesced in
the trials of those guilty of violations of the law of war. The conduct of the trial by
the military commission has been 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.
The Charge. Neither Congressional action nor the military orders constituting the
commission authorized it to place petitioner on trial unless the charge preferred
against him is of a violation of the law of war. The charge, so far as now relevant, is
that petitioner, between October 9, 1944, and September 2, 1945, in the Philippine
Islands,
"while commander of armed forces of Japan at war with the United States of
Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that the
America and its allies, unlawfully disregarded and failed to discharge his duty as
charge does not allege that petitioner has either committed or directed the
commander to
Page 327 U. S. 14
control the operations of the members of his command, permitting them to
commit brutal atrocities and other high crimes against people of the United States
and of its allies and dependencies, particularly the Philippines, and he . . . thereby
Page 327 U. S. 15
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 the specified
the forces under petitioner's command during the period mentioned. The first item
acts which are violations of the law of war and which are likely to attend the
"a 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 therein, as a result of which more than 25,000 men,
charged with personal responsibility for his failure to take such measures when
violations result. That this was the precise issue to be tried was made clear by the
statement of the prosecution at the opening of the trial.
It is evident that the conduct of military operations by troops whose excesses are
mistreated and killed, without cause or trial, and entire settlements were
result in violations which it is the purpose of the law of war to prevent. Its purpose
Other items specify acts of violence, cruelty, and homicide inflicted upon the
civilian population and prisoners of war, acts of wholesale pillage, and the wanton
destruction of religious monuments.
It is not denied that such acts directed against the civilian population of an
occupied country and against prisoners of war are recognized in international law
as violations of the law of war. Articles 4, 28, 46, and 47, Annex to Fourth Hague
to protect civilian populations and prisoners of war from brutality would largely be
defeated if the commander of an invading army could, with impunity, neglect to
take reasonable measures for their protection. Hence, 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.
population. This duty of a commanding officer has heretofore been recognized, and
the laws and customs of war on land. Article I lays down, as a condition which an
its breach penalized by our own military tribunals. [Footnote 3] A like principle has
armed force must fulfill in order to be accorded the rights of lawful belligerents,
We do not make the laws of war, but we respect them so far as they do not conflict
Stat. 2389. And Article 26 of the Geneva Red Cross Convention of 1929, 47 Stat.
2074, 2092, for the amelioration of the condition of the wounded and sick in
the present charge, thus read, is without the support of evidence, or that the
commission held petitioner responsible for failing to take measures which were
beyond his control or inappropriate for a commanding officer to take in the
circumstances. [Footnote 4]
Page 327 U. S. 16
Page 327 U. S. 17
armies to provide for the details of execution of the foregoing articles [of the
not consider what measures, if any, petitioner took to prevent the commission, by
the troops under his command, of the plain violations of the law of war detailed in
And, finally, Article 43 of the Annex of the Fourth Hague Convention, 36 Stat.
the bill of particulars, or whether such measures as he may have taken were
2306, requires that the commander of a force occupying enemy territory, as was
appropriate and sufficient to discharge the duty imposed upon him. These are
petitioner,
questions within the peculiar competence of the military officers composing the
"shall take all the measures in his power to restore and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country."
These provisions plainly imposed on petitioner, who at the time specified was
military governor of the Philippines as well as commander of the Japanese forces,
an affirmative duty to take such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the civilian
commission, and were for it to decide. See Smith v. Whitney, 116 U. S. 167, 116 U.
S. 178. It is plain that the charge on which petitioner was tried charged him with a
breach of his duty to control the operations of the members of his command, by
permitting them to commit the specified atrocities. This was enough to require the
commission to hear evidence tending to establish the culpable failure of petitioner
to perform the duty imposed on him by the law of war, and to pass upon its
sufficiency to establish guilt.
Obviously, charges of violations of the law of war triable before a military tribunal
Page 327 U. S. 19
need not be stated with the precision of a common law indictment. Cf. Collins v.
McDonald, supra, 258 U. S. 420. But we conclude that the allegations of the
We think that neither Article 25 nor Article 38 is applicable to the trial of an enemy
charge, tested by any reasonable standard, adequately allege a violation of the law
combatant by a military commission for violations of the law of war. Article 2 of the
Articles of War enumerates "the persons . . . subject to these articles," who are
denominated, for purposes of the Articles, as "persons subject to military law." In
Page 327 U. S. 18
general, the persons so enumerated are members of our own Army and of the
personnel accompanying the Army. Enemy combatants are not included among
commission had authority to try and decide the issue which it raised. Cf. Dealy v.
them. Articles 12, 13, and 14, before the adoption of Article 15 in 1916, 39 Stat. 653,
United States, 152 U. S. 539; Williamson v. United States, 207 U. S. 425, 207 U. S.
made all "persons subject to military law" amenable to trial by courts-martial for
447; Glasser v. United States, 315 U. S. 60, 315 U. S. 66, and cases cited.
any offense made punishable by the Articles of War. Article 12 makes triable by
general court martial "any other person who, by the law of war, is [triable] by
military tribunals." Since Article 2, in its 1916 form, 39 Stat. 651, includes some
persons who, by the law of war, were, prior to 1916, triable by military commission,
it was feared by the proponents of the 1916 legislation that, in the absence of a
saving provision, the authority given by Articles 12, 13, and 14 to try such persons
before courts-martial might be construed to deprive the nonstatutory military
commission of a portion of what was considered to be its traditional jurisdiction.
To avoid this, and to preserve that jurisdiction intact, Article 15 was added to the
taken by officers detailed for that purpose by military authority. The petitions in
this case charged that, in the course of the trial, the commission received, over
objection by petitioner's counsel, the deposition of a witness taken pursuant to
military authority by a United States Army captain. It also, over like objection,
argues, as ground for the writ of habeas corpus, that Article 25 [Footnote 5] of the
offenses that, by the law of war, may be lawfully triable by such military
commissions."
only by the same courts and according to the same procedure as in the case of
Since petitioner is a prisoner of war, and as the 25th and 38th Articles of War apply
Articles of War persons other than those defined by Article 2 as being subject to the
to the trial of any person in our own armed forces, it is said that Article 63 requires
Articles, nor did it confer the benefits of the Articles upon such persons. The
Articles recognized but one kind of military commission, not two. But they
in its setting in the Convention plainly shows that it refers to sentence "pronounced
sanctioned the use of that one for the trial of two classes of persons, to one of which
against a prisoner of war" for an offense committed while a prisoner of war, and
the Articles do, and to the other of which they do not, apply in such trials. Being of
this latter class, petitioner cannot claim the benefits of the Articles, which are
applicable only to the members of the other class. Petitioner, an enemy combatant,
is therefore not a person made subject to the Articles of War by Article 2, and the
military commission before which he was tried, though sanctioned, and its
jurisdiction saved, by Article 15, was not convened by virtue of the Articles of War,
but pursuant to the common law of war. It follows that the Articles of War,
including Articles 25 and 38, were not applicable to petitioner's trial, and imposed
no restrictions upon the procedure to be followed. The Articles left the control over
the procedure in such a case where it had previously been -- with the military
command.
Petitioner further urges that, by virtue of Article 63 of the Geneva Convention of
1929, 47 Stat. 2052, he is entitled to the benefits afforded by the 25th and 38th
Articles of War to members of our own forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war
Page 327 U. S. 21
further defines the extent of such punishment and the mode in which it may be
Effect of failure to give notice of the trial to the protecting power. Article 60 of the
Geneva Convention of July 27, 1929, 47 Stat. 2051, to which the United States and
the procedure by which "judicial" punishment may be imposed. The three parts of
"At the opening of a judicial proceeding directed against a prisoner of war, the
penalties which may be imposed on account of such offenses, and of the procedure
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."
We think it clear, from the context of these recited provisions, that part 3, and
Petitioner relies on the failure to give the prescribed notice to the protecting power
trial.
Page 327 U. S. 23
Page 327 U. S. 24
V gives no indication that this part was designed to deal with offenses other than
For reasons already stated, we conclude that Article 60 of the Geneva Convention,
which appears in part 3, Chapter 3, Section V, Title III of the Geneva Convention,
applies only to persons who are subjected to judicial proceedings for offenses
now made, violated any act of Congress, treaty, or military command defining the
commission's authority. For reasons already stated, we hold that the commission's
rulings on evidence and on the mode of conducting these proceedings against
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, and as to that, no intimation one
way or the other is to be implied. Nothing we have said is to be taken as indicating
any opinion on the question of the wisdom of considering such evidence, or
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.
Page 327 U. S. 25
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
Page 327 U. S. 26
[Footnote 2]
petitions for writs of habeas corpus and prohibition should be, and they are
See cases mentioned in Ex parte Quirin, supra, 317 U. S. 32, note 10, and in 2
Winthrop, supra, *1310-1311, n. 5; 14 Op.Atty.Gen. 249 (Modoc Indian Prisoners).
Denied.
[Footnote 3]
MR. JUSTICE JACKSON took no part in the consideration or decision of these
cases.
Philippines, August 17, 1901. And, in Gen.Orders No. 264, Hq.Div. of the
for writ of certiorari to the Supreme Court of the the Philippines. For earlier orders
Philippines, September 9, 1901, it was held that an officer could not be found guilty
for failure to prevent a murder unless it appeared that the accused had "the power
[Footnote 1]
The Commission on the Responsibility of the Authors of the War and on the
Enforcement of Penalties of the Versailles Peace Conference, which met after
to prevent" it.
[Footnote 4]
In its findings, the commission took account of the difficulties
cessation of hostilities in the First World War, were of the view that violators of the
law of war could be tried by military tribunals. See Report of the Commission,
"faced by the accused with respect not only to the swift and overpowering advance
concluded after World War I recognized the right of the Allies and of the United
States to try such offenders before military tribunals. See Art. 228 of Treaty of
Versailles, June 28, 1919; Art. 173 of Treaty of St. Germain, Sept. 10, 1919; Art. 157
of Treaty of Trianon, June 4, 1920.
The terms of the agreement which ended hostilities in the Boer War reserved the
right to try, before military tribunals, enemy combatants who had violated the law
of war. 95 British and Foreign State Papers (1901-1902) 160. See also trials cited in
Colby, War Crimes, 23 Michigan Law Rev. 482, 496-497.
and
"the tactical situation, the character, training and capacity of staff officers and
subordinate commanders, as well as the traits of character of his troops."
It nonetheless found that petitioner had not taken such measures to control his
troops as were "required by the circumstances." We do not weigh the evidence. We
merely hold that the charge sufficiently states a violation against the law of war,
and that the commission, upon the facts found, could properly find petitioner
number of persons who are also subject to trial by military commission. A military
commission is our common law war court. It has no statutory existence, though it
[Footnote 5]
Article 25 provides:
"A duly authenticated deposition taken upon reasonable notice to the opposite
party may be read in evidence before any military court or commission in any case
not capital, or in any proceeding before a court of inquiry or a military
board, . . . Provided, That testimony by deposition may be adduced for the defense
in capital cases."
[Footnote 6]
Article 38 provides:
"The President may, by regulations, which he may modify from time to time,
prescribe the procedure, including modes of proof, in cases before courts-martial,
courts of inquiry, military commissions, and other military tribunals, which
regulations shall, insofar as he shall deem practicable, apply the rules of evidence
generally recognized in the trial of criminal cases in the district courts of the
United States: Provided, That nothing contrary to or inconsistent with these
articles shall be so prescribed. . . ."
[Footnote 7]
General Crowder, the Judge Advocate General, who appeared before Congress as
sponsor for the adoption of Article 15 and the accompanying amendment of Article
25, in explaining the purpose of Article 15, said:
Article 48 provides that prisoners of war, after having suffered "the judicial of
disciplinary punishment which has been imposed on them," are not to be treated
differently from other prisoners, but provides that "prisoners punished as a result
inapplicable in the cases specified, and that, hence, he could not be lawfully held or
prerogatives attached to their rank." Articles 50 and 51 deal with escaped prisoners
given.
who have been retaken or prisoners who have attempted to escape. Article 52
provides:
As the Government insists, it does not appear from the charge and specifications
that the prisoners in question were not charged with offenses committed by them
"Belligerents shall see that the competent authorities exercise the greatest leniency
as prisoners, rather than with offenses against the law of war committed by them
should be punished more than once because of the same act or the same count."
[Footnote 9]
Switzerland, at the time of the trial, was the power designated by Japan for the
protection of Japanese prisoners of war detained by the United States, except in
Hawaii. U.S.Dept. of State Bull. Vol. XIII, No. 317, p. 125.
[Footnote 10]
One of the items of the bill of particulars in support of the charge against petitioner
specifies that he permitted members of the armed forces under his command to try
and execute three named and other prisoners of war,
population, and (3) burning and demolition, without adequate military necessity,
from the sentence rendered; failing to notify the protecting power of the sentence
The commission concluded: "(1) that a series of atrocities and other high crimes
have been committed by members of the Japanese armed forces" under command
of petitioner
"against people of the United States, their allies and dependencies; . . . that they
Nations. . . ." The grave issue raised by this case is whether a military commission
were not sporadic in nature, but in many cases were methodically supervised by
(2) that, during the period in question, petitioner "failed to provide effective
control of [his] troops, as was required by the circumstances." The commission
The answer is plain. The Fifth Amendment guarantee of due process of law applies
said:
to "any person" who is accused of a crime by the Federal Government or any of its
agencies. No exception is made as to those who are accused of war crimes or as to
"Where murder and rape and vicious, revengeful actions are widespread offenses,
those who possess the status of an enemy belligerent. Indeed, such an exception
would be contrary to the whole philosophy of human rights which makes the
criminal acts, such a commander may be held responsible, even criminally liable,
Constitution the great living document that it is. The immutable rights of the
for the lawless acts of his troops, depending upon their nature and the
individual, including those secured by the due process clause of the Fifth
Amendment, belong not alone to the members of those nations that excel on the
petitions for habeas corpus on the ground that petitioner had been charged with or
convicted for failure to require the notice prescribed by Article 60 to be given.
army in the world, can ever destroy them. Such is the universal and indestructible
nature of the rights which the due process clause of the Fifth Amendment
recognizes and protects when life or liberty is threatened by virtue of the authority
of the United States.
The existence of these rights, unfortunately, is not always respected. They are often
commander of a conquered nation for an alleged war crime. The authority for such
trampled under by those who are motivated by hatred, aggression, or fear. But, in
action grows out of the exercise of the power conferred upon Congress by Article I,
this nation, individual rights are recognized and protected, at least in regard to
8, Cl. 10 of the Constitution to "define and punish . . . Offenses against the Law of
even the military, except under the most extreme and urgent circumstances.
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
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
make the crime whatever it willed, dependent upon its biased view as to
the commander of an army totally destroyed by the superior power of this nation.
petitioner's duties and his disregard thereof, a practice reminiscent of that pursued
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 immense sacrifices that they have made to advance the common ideals of
the accepted rules of law and procedure. He was also entitled to a fair trial as to any
mankind. The high feelings of the moment doubtless will be satisfied. But in the
alleged crimes, and to be free from charges of legally unrecognized crimes that
sober afterglow will come the realization of the boundless and dangerous
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.
fate of some future President of the United States and his chiefs of staff and
The trial was ordered to be held in territory over which the United States has
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
suspension of the safeguards of due process. Yet petitioner was rushed to trial
unprecedented procedure. That has been the inevitable effect of every method of
instance, unfortunately, will be magnified infinitely, for here we are dealing with
Page 327 U. S. 28
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
to an unfair trial, to charge him with an unrecognized crime, or to vent on him our
that he committed a recognized violation of the laws of war. He was not charged
retributive emotions only antagonizes the enemy nation and hinders the
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
That there were brutal atrocities inflicted upon the helpless Filipino people, to
enemy commander conducted under the authority of the United States. Otherwise,
stark retribution will be free to masquerade in a cloak of false legalism. And the
rape, murder, and wanton destruction of property were foremost among the
hatred and cynicism engendered by that retribution will supplant the great ideals
outright violations of the laws of war and of the conscience of a civilized world.
That just punishment should be meted out to all those responsible for criminal acts
of this nature is also beyond dispute. But these factors do not answer the problem
This Court, fortunately, has taken the first and most important step toward
in this case. They do not justify the abandonment of our devotion to justice in
insuring the supremacy of law and justice in the treatment of an enemy belligerent
dealing with a fallen enemy commander. To conclude otherwise is to admit that the
accused of violating the laws of war. Jurisdiction properly has been asserted to
enemy has lost the battle, but has destroyed our ideals.
inquire "into the cause of restraint of liberty" of such a person. 28 U.S.C. 452.
Thus, the obnoxious doctrine asserted by the Government in this case -- to the
War breeds atrocities. From the earliest conflicts of recorded history to the global
effect that restraints of liberty resulting from military trials of war criminals are
struggles of modern times, inhumanities, lust, and pillage have been the inevitable
political matters completely outside the arena of judicial review -- has been
byproducts of man's resort to force and arms. Unfortunately, such despicable acts
rejected fully and unquestionably. This does not mean, of course, that the foreign
affairs and policies of the nation are proper subjects of judicial inquiry. But, when
the liberty of any person is restrained by reason of the authority of the United
turn, breeds resentment and fresh tension. Thus does the spiral of cruelty and
States, the writ of habeas corpus is available to test the legality of that restraint,
hatred grow.
even though direct court review of the restraint is prohibited. The conclusive
presumption must be made, in this country at least, that illegal restraints are
unauthorized and unjustified by any foreign policy of the Government, and that
punishment of those guilty of atrocities be as free as possible from the ugly stigma
basis, judicial inquiry into these matters may proceed within its proper sphere.
The determination of the extent of review of war trials calls for judicial
reach this Court, our responsibility is both lofty and difficult. We must insist,
statesmanship of the highest order. The ultimate nature and scope of the writ of
habeas corpus are within the discretion of the judiciary unless validly
circumscribed by Congress. Here, we are confronted with a use of the writ under
Page 327 U. S. 30
Page 327 U. S. 31
Court. For my own part, I do not feel that we should be confined by the traditional
lines of review drawn in connection with the use of the writ by ordinary criminals
Page 327 U. S. 32
who have direct access to the judiciary in the first instance. Those held by the
military lack any such access; consequently the judicial review available by habeas
the petitioner assumed this command. Combined with a great and decisive sea
corpus must be wider than usual in order that proper standards of justice may be
battle, an invasion was made on the island of Leyte on October 20, 1944.
enforceable.
"In the six days of the great naval action, the Japanese position in the Philippines
But, for the purposes of this case, I accept the scope of review recognized by the
had become extremely critical. Most of the serviceable elements of the Japanese
Court at this time. As I understand it, the following issues in connection with war
Navy had become committed to the battle, with disastrous results. The strike had
criminal trials are reviewable through the use of the writ of habeas corpus: (1)
miscarried, and General MacArthur's land wedge was firmly implanted in the
whether the military commission was lawfully created and had authority to try and
vulnerable flank of the enemy. . . . There were 260,000 Japanese troops scattered
to convict the accused of a war crime; (2) whether the charge against the accused
over the Philippines, but most of them might as well have been on the other side of
stated a violation of the laws of war; (3) whether the commission, in admitting
the world so far as the enemy's ability to shift them to meet the American thrusts
certain evidence, violated any law or military command defining the commission's
authority in that respect, and (4) whether the commission lacked jurisdiction
Visayas, where he could stage, exploit, and spread under cover of overwhelming
naval and air superiority, nothing could prevent him from overrunning the
treaty or convention.
Philippines."
Biennial Report of the Chief of Staff of the United States Army, July 1, 1943, to
commission was lawfully created in this instance, and that petitioner could not
object to its power to try him for a recognized war crime. Without pausing here to
discuss the third and fourth issues, however, I find it impossible to agree that the
charge against the petitioner stated a recognized violation of the laws of war.
It is important, in the first place, to appreciate the background of events preceding
this trial. From October 9, 1944, to September 2, 1945, the petitioner was the
Commanding General of the 14th Army Group of the Imperial Japanese Army,
By the end of 1944, the island of Leyte was largely in American hands. And on
January 9, 1945, the island of Luzon was invaded.
"Yamashita's inability to cope with General MacArthur's swift moves, his desired
reaction to the deception measures, the guerrillas, and General Kenney's aircraft,
combined to place the Japanese in an impossible situation. The enemy was forced
into a piecemeal commitment of his troops."
Ibid., p. 78. It was at this time and place that most of the alleged atrocities took
of the charge, he was removed from the status of a prisoner of war and placed in
place. Organized resistance around Manila ceased on February 23. Repeated land
and air assaults pulverized the enemy, and, within a few months, there was little
before a military commission specially appointed for the case. Petitioner pleaded
left of petitioner's command except a few remnants which had gathered for a last
not guilty. He was also served on that day with a bill of particulars alleging 64
crimes by troops under his command. A supplemental bill alleging 59 more crimes
by his troops was filed on October 29, the same day that the trial began. No
morale of his troops. It was alleged that the sudden assignment of Naval and Air
the operations of the members of his command, permitting them to commit brutal
situation was followed, the Defense contended, by failure to obey his orders to
withdraw troops from Manila, and the subsequent massacre of unarmed civilians,
The bills of particular further alleged that specific acts of atrocity were committed
particularly by Naval forces. Prior to the Luzon Campaign, Naval forces had
by "members of the armed forces of Japan under the command of the accused."
Nowhere was it alleged that the petitioner personally committed any of the
Commanders may not have been receptive or experienced in this instance with
respect to a joint land operation under a single commander who was designated
personal charge against the petitioner. The commission merely found that
"have been committed by members of the Japanese armed forces under your
after surrendering, he was served with the charge in issue in this case. Upon service
command . . . ; that they were not sporadic in nature, but, in many cases, were
that, during the period in question, you failed to provide effective control of your
army under constant and overwhelming assault, nor does it impose liability under
In other words, read against the background of military events in the Philippines
according to the nature and intensity of the particular battle. To find an unlawful
deviation from duty under battle conditions requires difficult and speculative
"We, the victorious American forces, have done everything possible to destroy and
disorganize your lines of communication, your effective control of your personnel,
your ability to wage war. In those respects, we have succeeded. We have defeated
and crushed your forces. And now, we charge and condemn you for having been
inefficient in maintaining control of your troops during the period when we were
so effectively beseiging and eliminating your forces and blocking your ability to
maintain effective control. Many terrible atrocities were committed by your
disorganized troops. Because these atrocities were so widespread, we will not
bother to charge or prove that you committed, ordered, or
Page 327 U. S. 35
condoned any of them. We will assume that they must have resulted from your
inefficiency and negligence as a commander. In short, we charge you with the
crime of inefficiency in controlling your troops. We will judge the discharge of your
duties by the disorganization which we ourselves created in large part. Our
standards of judgment are whatever we wish to make them."
Nothing in all history or in international law, at least as far as I am aware, justifies
such a charge against a fallen commander of a defeated force. To use the very
inefficiency and disorganization created by the victorious forces as the primary
basis for condemning officers of the defeated armies bears no resemblance to
justice, or to military reality.
calculations. Such calculations become highly untrustworthy when they are made
by the victor in relation to the actions of a vanquished commander. Objective and
realistic norms of conduct are then extremely unlikely to be used in forming a
judgment as to deviations from duty. The probability that vengeance will form the
major part of the victor's judgment is an unfortunate but inescapable fact. So great
is that probability that international law refuses to recognize such a judgment as a
basis for a war crime, however fair the judgment may be in a particular instance. It
is this consideration that undermines the charge against the petitioner in this case.
The indictment permits -- indeed compels -- the military commission of a
victorious nation to
Page 327 U. S. 36
sit in judgment upon the military strategy and actions of the defeated enemy, and
to use its conclusions to determine the criminal liability of an enemy commander.
Life and liberty are made to depend upon the biased will of the victor, rather than
upon objective standards of conduct.
The Court's reliance upon vague and indefinite references in certain of the Hague
Conventions and the Geneva Red Cross Convention is misplaced. Thus, the
statement in Article 1 of the Annex to Hague Convention No. IV of October 18,
1907, 36 Stat. 2277, 2295, to the effect that the laws, rights and duties of war apply
to military and volunteer corps only if they are "commanded by a person
responsible for his subordinates," has no bearing upon the problem in this case.
The provisions of the other conventions referred to by the Court are, on their face,
Even if it has, the clause "responsible for his subordinates" fails to state to whom
Article 19 of Hague Convention No. X, 36 Stat. 2371, 2389, nor Article 26 of the
Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2092, refers to circumstances
law. In Oppenheim, International Law (6th ed., rev. by Lauterpacht, 1940, vol. 2, p.
where the troops of a commander commit atrocities while under heavily adverse
'responsible to some higher authority,' whether the person is appointed from above
or elected from below. . . ."
"shall take all the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in
Another authority has stated that the word "responsible" in this particular context
But the petitioner was more than a commander of a force occupying enemy
acts." Wheaton, International Law (14th ed., by Keith, 1944, p. 172, fn. 30). Still
territory. He was the leader of an army under constant and devastating attacks by a
another authority, Westlake, International Law (1907, Part II, p. 61), states that
effective control." Finally, Edwards and Oppenheim, Land Warfare (1912, p. 19,
par. 22) state that it is enough "if the commander of the corps is regularly or
Even the laws of war heretofore recognized by this nation fail to impute
Page 327 U. S. 37
Basic Field Manual, Rules of Land Warfare, FM 27-10 (1940), states the principal
offenses under the laws of war recognized by the United States. This includes all of
position and authority." It seems apparent beyond dispute that the word
the atrocities which the Japanese troops were alleged to have committed in this
"responsible" was not used in this particular Hague Convention to hold the
instance. Originally,
Page 327 U. S. 38
war crimes committed by troops under his command under such circumstances.
this paragraph concluded with the statement that
"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
Insurrection in 1900 and 1901, where commanding officers were found to have
The meaning of the phrase "under whose authority they are committed" was not
Hq. Div. Phil.; Eugenio Fernandez and Juan Soriano, G.O. 28, Feb. 6, 1901,
clear. On November 15, 1944, however, this sentence was deleted and a new
Hq.Div.Phil.; Ciriaco Cabungal, G.O. 188, Jul. 22, 1901, Hq.Div.Phil.; Natalio
paragraph was added relating to the personal liability of those who violate the laws
Valencia, G.O. 221, Aug. 17, 1901, Hq.Div.Phil.; Aniceta Angeles, G.O. 246, Sept. 2,
1901, Hq.Div.Phil.; Francisco Braganza, G.O. 291, Sept. 26, 1901, Hq.Div.Phil.;
"Individuals and organizations who violate the accepted laws and customs of war
may be punished therefor. However, the fact that the acts complained of were done
pursuant to order of a superior or government sanction may be taken into
Lorenzo Andaya, G.O. 328, Oct. 25, 1901, Hq.Div.Phil. And, in other cases, officers
have been held
Page 327 U. S. 39
liable where they knew that a crime was to be committed, had the power to prevent
it, and failed to exercise that power. Pedro Abad Santos, G.O. 130, June 19, 1901,
From this, the conclusion seems inescapable that the United States recognizes
Hq.Div.Phil. Cf. Pedro A. Cruz, G.O. 264, Sept. 9, 1901, Hq.Div.Phil. In no recorded
individual criminal responsibility for violations of the laws of war only as to those
instance, however, has the mere inability to control troops under fire or attack by
who commit the offenses or who order or direct their commission. Such was not
superior forces been made the basis of a charge of violating the laws of war.
Government, that one who is under a legal duty to take protective or preventive
grossly and openly violated without any justification. All of this was done without
death is proximately caused. State v. Harrison, 107 N.J.L. 213, 152 A. 867; State v.
the atrocities, out of which might have come some proof or indication of personal
Irvine, 126 La. 434, 52 So. 567; Holmes, The Common Law, p. 278. No one denies
culpability on petitioner's part. Instead the loose charge was made that great
that inaction or negligence may give rise to liability, civil or criminal. But it is quite
numbers of atrocities had been committed and that petitioner was the
another thing to say that the inability to control troops under highly competitive
commanding officer; hence he must have been guilty of disregard of duty. Under
and disastrous battle conditions renders one guilty of a war crime in the absence of
that charge the commission was free to establish whatever standard of duty on
petitioner's part that it desired. By this flexible method a victorious nation may
connection with the atrocities, the problem would be entirely different. Moreover,
convict and execute any or all leaders of a vanquished foe, depending upon the
prevailing degree of vengeance and the absence of any objective judicial review.
Page 327 U. S. 40
At a time like this when emotions are understandably high it is difficult to adopt a
dispassionate attitude toward
here with an ordinary tort or criminal action; precedents in those fields are of little
if any value. Rather, we are concerned with a proceeding involving an international
Page 327 U. S. 41
crime, the treatment of which may have untold effects upon the future peace of the
world. That fact must be kept uppermost in our search for precedent.
a case of this nature. Yet now is precisely the time when that attitude is most
essential. While peoples in other lands may not share our beliefs as to due process
The only conclusion I can draw is that the charge made against the petitioner is
and the dignity of the individual, we are not free to give effect to our emotions in
reckless disregard of the rights of others. We live under the Constitution, which is
history. This is not to say that enemy commanders may escape punishment for
the embodiment of all the high hopes and aspirations of the new world. And it is
clear and unlawful failures to prevent atrocities. But that punishment should be
applicable in both war and peace. We must act accordingly. Indeed, an uncurbed
based upon charges fairly drawn in light of established rules of international law
spirt of revenge and retribution, masked in formal legal procedure for purposes of
dealing with a fallen enemy commander, can do more lasting harm than all of the
atrocities giving rise to that spirit. The people's faith in the fairness and
But the charge in this case, as previously noted, was speedily drawn and filed but
objectiveness of the law can be seriously undercut by that spirit. The fires of
three weeks after the petitioner surrendered. The trial proceeded with great
nationalism can be further kindled. And the hearts of all mankind can be
embittered and filled with hatred, leaving forlorn and impoverished the noble ideal
Petitioner's rights under the due process clause of the Fifth Amendment were
of malice toward none and charity to all. These are the reasons that lead me to
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.
This trial is unprecedented in our history. Never before have we tried and
convicted an enemy general for action taken during hostilities or otherwise in the
course of military operations or duty. Much less have we condemned one for failing
to take action. The novelty is not lessened by the trial's having taken place after
hostilities ended and the enemy, including the accused, had surrendered.
Moreover, so far as the time permitted for our
Page 327 U. S. 43
consideration has given opportunity, I have not been able to find precedent for the
proceeding in the system of any nation founded in the basic principles of our
authority or usage.
not all-controlling in law. There must be room for growth, since every precedent
prepared ex parte by the prosecuting authority and includes not only opinion but
has an origin. But it is the essence of our tradition for judges, when they stand at
the end of the marked way, to go forward with caution keeping sight, so far as they
are able, upon the great landmarks left behind and the direction they point ahead.
If, as may be hoped, we are now to enter upon a new era of law in the world, it
Our tradition does not allow conviction by tribunals both authorized and bound
becomes more important than ever before for the nations creating that system to
[Footnote 2/7] by the instrument of their creation to receive and consider evidence
observe their greatest traditions of administering justice, including this one, both
in their own judging and in their new creation. The proceedings in this case veer so
accord with our basic concepts to make the tribunal, specially constituted for the
far from some of our time-tested road signs that I cannot take the large strides
particular trial, regardless of those prohibitions, the sole and exclusive judge of the
credibility,
I
It is not in our tradition for anyone to be charged with crime which is defined after
Page 327 U. S. 45
probative value, and admissibility of whatever may be tendered as evidence.
his conduct, alleged to be criminal, has taken place, [Footnote 2/1] or in language
not sufficient to inform him of the nature of the offense or to enable him to make
The matter is not one merely of the character and admissibility of evidence. It goes
defense. [Footnote 2/2] Mass guilt we do not impute to individuals, perhaps in any
to the very competency of the tribunal to try and punish consistently with the
case, but certainly in none where the person is not charged or shown actively to
Constitution, the laws of the United States made in pursuance thereof, and treaties
Page 327 U. S. 44
All these deviations from the fundamental law, and others, occurred in the course
of constituting the commission, the preparation for trial and defense, the trial
prevent the wrongs done by others, having both the duty and the power to do so.
itself, and therefore, in effect, in the sentence imposed. Whether taken singly in
some instances as departures from specific constitutional mandates or in totality as
In this view, the action taken here is one of military necessity, exclusively within
of life, liberty or property without due process of law, a trial so vitiated cannot
One basis protection of our system, and one only, petitioner has had. He has been
As I understand the Court, this is in substance the effect of what has been done.
For I cannot conceive any instance of departure from our basic concepts of fair trial
But, as will appear, even this conceded shield was taken away in much of its value
by denial of reasonable opportunity for them to perform their function.
We are technically still at war, because peace has not been negotiated finally or
declared. But there is no longer the danger which always exists before surrender
On this denial and the commission's invalid constitution specifically, but also more
and armistice. Military necessity does not demand the same measures. The nation
generally upon the totality of departures from constitutional norms inherent in the
may be more secure now than at any time after peace is officially concluded. In
idea of a fair trial, I rest my judgment that the commission was without jurisdiction
these facts is one great difference from Ex parte Quirin, 317 U. S. 1. Punitive action
from the beginning to try or punish the petitioner, and that, if it had acquired
taken now can be effective only for the next war, for purposes of military security.
jurisdiction then, its power to proceed was lost in the course of what was done
And enemy aliens, including belligerents, need the attenuated protections our
system extends to them more now than before hostilities ceased or than they may
after a treaty of peace is signed. Ample power there is to punish them or others for
Only on one view, in my opinion, could either of these conclusions be avoided. This
crimes, whether under the laws of war during its course or later during occupation.
There can be no question of that. The only question is how it shall be done,
Page 327 U. S. 46
belligerent in petitioner's position is altogether beyond the pale of constitutional
consistently
Page 327 U. S. 47
protection, regardless of the fact that hostilities had ended and he had surrendered
with his country. The Government has so argued, urging that we are still at war
with Japan, and all the power of the military effective during active hostilities in
theaters of combat continues in full force, unaffected by the events of August 14,
question here of what the military might have done in a field of combat. There, the
maxim about the law becoming silent in the noise of arms applies. The purpose of
battle is to kill. But it does not follow that this would justify killing by trial after
capture or surrender, without compliance with laws or treaties made to apply in
by which General Styer was ordered to and pursuant to which he did proceed with
constituting the commission. [Footnote 2/8] The directive was accompanied by
I turn now to discuss some of the details of what has taken place. My basic
elaborate and detailed rules and regulations prescribing the procedure and rules of
difference is with the Court's view that provisions of the Articles of War and of
evidence to be followed, of which, for present purposes, Section 16, set forth below,
treaties are not made applicable to this proceeding, and with its ruling that, absent
such applicable provisions, none of the things done so vitiated the trial and
sentence as to deprive the commission of jurisdiction.
Page 327 U. S. 49
My Brother MURPHY has discussed the charge with respect to the substance of the
crime. With his conclusions in this respect, I agree. My own primary concern will
be with the constitution of the commission and other matters taking place in the
to prepare petitioner's defense and the sufficiency of the evidence, together with
Necessarily, only a short sketch can be given concerning each matter. And it may
use in the trial of crime in the civil courts or military tribunals, hardly could have
be stated at the start that, although it was ruled in Ex parte Quirin, supra, that this
been made. So far as the admissibility and probative value of evidence was
Court had no function to review the evidence, it was not there or elsewhere
II
during the course of the proceedings, reversed its rulings favorable to the defense
Page 327 U. S. 51
where initially it had declined to receive what the prosecution offered. Every
conceivable kind of statement, rumor, report at first, second, third or further hand,
presented evidence to show that the crimes were so extensive and so widespread,
written, printed, or oral, and one "propaganda" film were allowed to come in, most
both as to time and area, [Footnote 2/14] that they must either have been willfully
Page 327 U. S. 50
him, and in the conclusion of guilt and the sentence. [Footnote 2/15] (Emphasis
added.) Indeed, the commission's ultimate findings [Footnote 2/16] draw no
express conclusion of knowledge, but state only two things: (1) the fact of
the Philippine Archipelago during the period of active hostilities covered by the
widespread atrocities and crimes; (2) that petitioner "failed to provide effective
The findings reflect the character of the proof and the charge. The statement
This vagueness, if not vacuity, in the findings runs throughout the proceedings,
quoted above [Footnote 2/12] gives only a numerical idea of the instances in which
from the charge itself, through the proof and the findings, to the conclusion. It
affects
these 423 "exhibits," the findings state the commission "has heard 286 persons
during the course of this trial, most of whom have given eye-witness accounts of
what they endured or what they saw."
Page 327 U. S. 52
the very gist of the offense -- whether that was willful, informed, and intentional
But there is not a suggestion in the findings that petitioner personally participated
in, was present at the occurrence of, or ordered any of these incidents, with the
crimes, or was only a negligent failure on his part to discover this and take
exception of the wholly inferential suggestion noted below. Nor is there any
express finding that he knew of any one of the incidents in particular or of all taken
together. The only inferential findings that he had knowledge, or that the
commission so found, are in the statement that "the crimes alleged to have been
permitted by the accused in violation of the laws of war may be grouped into three
categories" set out below, [Footnote 2/13] in the further statement that
"the prosecution
presented on the former basis and, unless, as is noted below, there is fatal
Page 327 U. S. 54
duplicity, it must be taken that the crime charged and sought to be proved was only
the failure, with knowledge, to perform the commander's function of control,
in the bills of particulars was by ex parte affidavits. It was in relation to this also
although the Court's opinion nowhere expressly declares that knowledge was
vital phase of the proof that there occurred one of the commission's reversals of its
earlier rulings in favor of the defense [Footnote 2/19] -- a fact, in itself, conclusive
demonstration of the necessity to the prosecution's case of the prohibited type of
unverified rumor, report, etc., that perhaps the greatest prejudice arose from the
admission of untrustworthy, unverified, unauthenticated evidence which could not
These two basic elements in the proof -- namely, proof of knowledge of the crimes
and proof of the specifications in the bills, that is, of the atrocities themselves --
value, or authenticity.
constitute the most important instances, perhaps, if not the most flagrant,
[Footnote 2/20]
Counsel for the defense have informed us in the brief and at the argument that the
sole proof of knowledge introduced at the trial was in the form of ex
parte affidavits and depositions. Apart from what has been excerpted from the
record in the applications and the briefs and such portions of the record as I have
been able to examine, it has been impossible for me fully to verify counsel's
statement in this respect. But the Government has not disputed it, and it has
maintained that we have no right to examine the record upon any question "of
evidence." Accordingly, without concession to that view, the statement of counsel is
taken for the fact . And, in that state of things, petitioner has been convicted of a
crime in which knowledge is an essential element, with no proof of knowledge
other than what would be inadmissible in any other capital case or proceeding
under our system, civil or military, and which, furthermore, Congress has expressly
commanded shall not be received in such cases tried by military commissions and
other military tribunals. [Footnote 2/18]
Moreover, counsel assert in the brief, and this also is not denied, that the sole proof
made of certain of the specifications
Page 327 U. S. 55
of departure not only from the express command of Congress against receiving
such proof, but from the whole British-American tradition of the common law and
the Constitution. Many others occurred which there is neither time nor space to
mention. [Footnote 2/21]
Petitioner asserts, and there can be no reason to doubt, that, by the use of all this
forbidden evidence, he was deprived of the right of cross-examination and other
means to establish the credibility of the deponents or affiants, not to speak of the
authors of reports, letters, documents, and newspaper articles; of opportunity to
determine whether the multitudinous crimes specified in the bills were committed
in fact by troops under his command or by naval or air force troops not under his
command at the time alleged; to ascertain whether the crimes attested were
isolated acts of individual soldiers or were military acts committed by troop units
acting under supervision of officers; and, finally, whether, "in short, there was such
a pattern' of conduct as the prosecution alleged and its whole theory of the crime
treaties, and the Constitution, in that order. If all these traditions can be so put
away, then indeed will we have entered upon a new but foreboding era of law.
He points out in this connection that the commission based its decision on a
finding as to the extent and number
Page 327 U. S. 56
of the atrocities, and that this, of itself, establishes the prejudicial effect of the
affidavits, etc., and of the denial resulting from their reception of any means of
probing the evidence they contained, including all opportunity for cross-
III
Denial of Opportunity to Prepare Defense
Petitioner surrendered September 3, 1945, and was interned as a prisoner of war in
conformity with Article 9
Page 327 U. S. 57
of the Geneva Convention of July 27, 1929. [Footnote 2/22] He was served with the
could not have been other than highly prejudicial. The matter is not one merely of
"rules of evidence." It goes, as will appear more fully later, to the basic right of
October 8, he was arraigned, and pleaded not guilty. On October 29, the trial
began, and it continued until December 7, when sentence was pronounced, exactly
Insufficient as this recital is to give a fair impression of what was done, it is enough
four years, almost to the hour, from the attack on Pearl Harbor.
to show that this was no trial in the traditions of the common law and the
On the day of arraignment, October 8, three weeks before the trial began,
Constitution. If the tribunal itself was not strange to them otherwise, it was in its
petitioner was served with a bill of particulars specifying 64 items setting forth a
forms and modes of procedure, in the character and substance of the evidence it
vast number of atrocities and crimes allegedly committed by troops under his
received, in the denial of all means to the accused and his counsel for testing the
command. [Footnote 2/23] The six officers appointed as defense counsel thus had
evidence, in the brevity and ambiguity of its findings made upon such a mass of
three weeks -- it is true, at the prosecution's suggestion, a week longer than they
material, and, as will appear, in the denial of any reasonable opportunity for
sought at first -- to investigate and prepare to meet all these items and the large
preparation of the defense. Because this last deprivation not only is important in
number of incidents they embodied, many of which had occurred in distant islands
itself, but is closely related to the departures from all limitations upon the
of the archipelago. There is some question whether they then anticipated the full
character of and modes of making the proof, it will be considered before turning to
scope and character of the charge or the evidence they would have to meet. But, as
the important legal questions relating to whether all these violations of our
will appear, they worked night and day at the task. Even so, it would have been
traditions can be brushed aside as not forbidden by the valid Acts of Congress,
But there was more. On the first day of the trial, October 29, the prosecution filed a
Page 327 U. S. 58
On November 2, after the commission had received an affirmative answer to its
containing 59 more specifications of the same general character, involving perhaps
inquiry whether the defense was prepared to proceed with an item in the
as many incidents occurring over an equally wide area. [Footnote 2/24] A copy had
been given the defense three days earlier. One item, No. 89, charged that American
soldiers, prisoners of war, had been tried and executed without notice having been
"Hereafter, then, unless there is no [sic] objection by the Defense, the Commission
given to the protecting power of the United States in accordance with the
will assume that you are prepared to proceed with any items in the Supplemental
Bill."
United States was not required to observe as to petitioner's trial. [Footnote 2/25]
On November 8, the question arose again upon the prosecution's inquiry as to
But what is more important is that defense counsel, as they felt was their duty, at
when the defense would be ready to proceed on the supplemental bill, the
once moved for a continuance. [Footnote 2/26] The application was denied.
prosecutor adding:
However the commission indicated that if, at the end of the prosecution's
presentation
"Frankly, sir, it took the War Crimes Commission some three months to investigate
these matters, and I cannot conceive of the Defense undertaking a similar
Page 327 U. S. 59
concerning the original bill, counsel should "believe they require additional
Stating it realized "the tremendous burden which we have placed on the Defense"
time . . . , the Commission will consider such a motion at that time," before taking
and its "determination to give them the time they require," the commission again
up the items of the supplemental bill. Counsel again indicated, without other
result, that time was desired at once "as much, if not more" to prepare for crossexamination "as the Prosecutor's case goes in" as to prepare affirmative defense.
Page 327 U. S. 60
On the next day, October 30, the commission interrupted the prosecutor to say it
Four days later, the commission announced it would grant a continuance "only for
would not then listen to testimony or discussion upon the supplemental bill. After
colloquy, it adhered to its prior ruling and, in response to inquiry from the
prosecution, the defense indicated it would require two weeks before it could
On November 20, when the prosecution rested, senior defense counsel moved for a
wide departure from the most elementary principles of fairness vitiated the
proceeding. When added to the other denials of fundamental right sketched above,
consider such a motion and stating that, since October 29, the defense had been
"working night and day," with "no time whatsoever to prepare any affirmative
defense," since counsel had been fully occupied trying "to keep up with the new Bill
IV
of Particulars."
The commission thereupon retired for deliberation and, on resuming its sessions
The Court's opinion puts the proceeding and the petitioner, insofar as any rights
shortly, denied the motion. Counsel then asked for "a short recess of a day." The
relating to his trial and conviction are concerned, wholly outside the Articles of
commission suggested a recess until 1:30 in the afternoon. Counsel responded this
War. In view of what has taken place, I think the decision's necessary effect is also
would not suffice. The commission stated it felt "that the Defense should be
"We haven't had time to do that, sir." The commission then recessed until 8:30 the
following morning.
The Court rules that Congress has not made Article 25 and 38 applicable to this
proceeding. It think it has made them applicable to this and all other military
Further comment is hardly required. Obviously the burden placed upon the
commissions or tribunals. If so, the commission not only lost all power to punish
defense, in the short time allowed for preparation on the original bill, was not only
"tremendous." In view of all the facts, it was an impossible one, even though the
him. For the directive by which it was constituted, in the provisions of Section 16,
time allowed was a week longer than asked. But the grosser vice was later, when
[Footnote 2/28] was squarely in conflict with Articles 25 and 38 of the Articles of
the burden was more than doubled by service of the supplemental bill on the eve of
Page 327 U. S. 62
defense
Article 25 allows reading of depositions in evidence, under prescribed conditions,
Page 327 U. S. 61
in the plainest terms "before any military court or commission in any case not
capital," providing, however, that "testimony by deposition may be adduced for the
was wholly arbitrary, cutting off the last vestige of adequate chance to prepare
defense in capital cases." (Emphasis added.) This language clearly and broadly
defense and imposing a burden the most able counsel could not bear. This sort of
thing has no place in our system of justice, civil or military. Without more, this
of the United States, unless they are connected in the manner Article 2 prescribes
including modes of proof, even more all-inclusively, if possible, "in cases before
The logic which excludes petitioner on the basic that prisoners of war are not
mentioned in Article 2 would exclude all these. I strongly doubt the Court would go
military body for performing the function of trial is covered. That is clear from the
so far, if presented with a trial like this in such instances. Nor does it follow
necessarily that, because some persons may not be mentioned in Article 2, they can
be tried without regard to any of the limitations placed by any of the other Articles
Article 38, moreover, limits the President's power. He is, so far as practicable, to
prescribe "the rules of evidence generally recognized in the trial of criminal cases in
the
Page 327 U. S. 63
dispute that most of the Articles are not applicable to the petitioner. It does not
follow, however, and Article 2 does not provide, that there may not be in the
district courts of the United States," a clear mandate that Congress intended all
Page 327 U. S. 64
there are also two unqualified limitations, one "that nothing contrary to or
inconsistent with these articles (specifically here Article 25) shall be so prescribed,"
covering persons other than those specified in Article 2. Had it so provided, Article
the other "that all rules made in pursuance of this article shall be laid before the
2 would have been contradictory not only of Articles 25 and 38, but also of Article
Congress annually."
In 1916, when the last general revision of the Articles of War took place, [Footnote
concludes the petitioner was not among the persons there declared to be subject to
2/30] for the first time, certain of the Articles were specifically made applicable to
the Articles of War, and therefore the commission which tries him is not subject to
military commissions. Until then, they had applied only to courts-martial. There
them. That Article does not cover prisoners of war or war criminals. Neither does it
were two purposes -- the first to give statutory recognition to the military
commission without loss of prior jurisdiction, and the second to give those tried
places under military jurisdiction within or without the United States or territory
subject to its sovereignty, whether they be neutrals or enemy aliens, even citizens
In order to effectuate the first purpose, the Army proposed Article 15. [Footnote
Winthrop, supra at *1299. Since that time, there has been only one type of military
tribunal, called the military commission, though it may exercise different kinds of
jurisdiction, [Footnote 2/33] according to the circumstances under which and
Page 327 U. S. 66
25 and 38 and several others were proposed. [Footnote 2/32] But, as the Court
commissions before which alleged offenders against the laws of war are tried. What
the Court holds, in effect, is that there are two types of military commissions, one
Page 327 U. S. 68
to try offenses which might be cognizable by a court-martial, the other to try war
crimes, and that Congress intended the Articles of War referring in terms to
for he was its most active official sponsor, spending years in securing its adoption
and revision. Articles 15, 25, and 38 particularly are traceable to his efforts. His
concern to secure statutory recognition for military commissions was equalled by
Page 327 U. S. 67
his concern that the statutory provisions giving this should not restrict their
preexisting jurisdiction. He did not wish, by securing additional jurisdiction,
This misconceives both the history of military commissions and the legislative
history of the Articles of War. There is only one kind of military commission. It is
15. That Article had one purpose and one only. It was to make sure that the
true, as the history noted shows, that what is now called "the military commission"
arose from two separate military courts instituted during the Mexican War. The
cause loss of any other. And it was jurisdiction, not procedure, which was covered
first military court, called by General Scott a "military commission," was given
by other Articles with which he and Congress were concerned in that Article. It
jurisdiction in Mexico over criminal offenses of the class cognizable by civil courts
discloses no purpose to deal in any way with procedure or to qualify Articles 25 and
in time of peace. The other military court, called a "counsel of war" was given
38. And it is clear that General Crowder at all times regarded all military
jurisdiction over offenses against the laws of war. Winthrop, Military Law and
Precedents (2d ed., reprinted 1920) *1298-1299. During the Civil War,
Articles 25 and 38 are concerned, this seems obvious for all types of military
"the two jurisdictions of the earlier commission and council respectively . . . [were]
united in the . . . war court, for which the general designation of 'military
commission' was retained as the preferable one."
tribunals. The same would appear to be true of other Articles also, e.g., 24,
(prohibiting compulsory self-incrimination), 26, 27, 32 (contempts), all except the
last dealing with procedural matters.
from his 1916 statement, after stating expressly the purpose of Article 15 to
classes of offenders: (1) "any person subject to military law," under the definition
of Article 2, for any offense "made punishable by these articles;" (2) "and any other
concurrent with that of courts-martial insofar as the two would overlap, "so that
person who by the law of war is subject to trial by military tribunals," not covered
the military commander in the field in time of war will be at liberty to employ
Article 12 thus, in conformity with Article 15, gives the general court-martial
no room for question. And his quotation from Winthrop supports his statement,
commissions. Neither it nor any other Article states or indicates there are to
this is the necessary result of the Court's decision, unless, in the alternative, that
Page 327 U. S. 70
would be to imply that, in exercising such jurisdiction, there is only one kind of
general court-martial, but there are two or more kinds of military commission,
the procedural provisions of the Articles, the other wholly free from their
with wholly different procedures and with the result that "the commander in the
restraints, or, as the Court strangely puts the matter, that there is only one kind of
commission, but that it is bound or not bound by the Articles applicable in terms,
commission shall be used as the circumstances may dictate, but must govern his
depending upon who is being tried and for what offense; for that very difference
makes the difference between one and two. The history and the discussion show
conclusively that General Crowder wished to secure, and Congress intended to
The only reasonable and, I think, possible conclusion to draw from the Articles is
that the Articles which are in terms applicable to military commissions are so
convenience might dictate, thus broadening to this extent the latter's jurisdiction
when exercising jurisdiction over offenders against the laws of war likewise are
and utility; but, at the same time, to preserve its full preexisting jurisdiction, and
uniformly, applicable, and not diversely according to the person or offense being
also to lay down identical provisions for governing or providing for the government
tried.
of the procedure and rules of evidence of every type of military tribunal, wherever
Not only the face of the Articles, but specific statements in General Crowder's
testimony support this view. Thus, in the portion quoted above [Footnote 2/34]
Page 327 U. S. 71
Finally, unless Congress was legislating with regard to all military commissions,
virtue of the terms of the Geneva Convention of 1929, in particular, Article 63. And
Article 38, which gives the President the power to "prescribe the procedure,
in other respects, in my opinion, the petitioner's trial was not in accord with that
The Court does not hold that the Geneva Convention is not binding upon the
United States, and no such contention has been made in this case. [Footnote 2/36]
It relies on other
All this seems so obvious upon a mere reading of the Articles themselves and the
legislative history as not to require demonstration. And all this Congress knew, as
Page 327 U. S. 73
that history shows. In the face of that showing, I cannot accept the Court's highly
strained construction, first, because I think it is in plain contradiction of the facts
arguments to show that Article 60, which provides that the protecting power shall
disclosed by the history of Articles 15, 25 and 38 as well as their language, and also
because that construction defeats at least two of the ends General Crowder had in
and Article 63, which provides that a prisoner of war may be tried only by the same
mind -- namely, to secure statutory recognition for every form of military tribunal
courts and according to the same procedure as in the case of persons belonging to
the armed forces of the detaining power, are not properly invoked by the
petitioner. Before considering the Court's view that these Articles are not
Page 327 U. S. 72
applicable to this proceeding by their terms, it may be noted that, on his surrender,
petitioner was interned in conformity with Article 9 of this Convention.
The chief argument is that Articles 60 and 63 have reference only to offenses
Articles, and, for that reason, the commission was invalidly constituted, was
committed by a prisoner of war while a prisoner of war, and not to violations of the
law of war committed while a combatant. This conclusion is derived from the
V
The Geneva Convention of 1929
setting in which these articles are placed. I do not agree that the context gives any
support to this argument. The argument is, in essence, of the same type as the
argument the Court employs to nullify the application of Articles 25 and 38 of the
compliance with such treaties, except in the case of political questions. This is
For reasons set forth in the margin, [Footnote 2/37] I think it equally invalid here.
especially true where the treaty has provisions -- such as Article 60 -- for the
protection of a man being tried for an offense the punishment for which is death;
Page 327 U. S. 76
Neither Article 60 nor Article 63 contains such a restriction of meaning as the
Court reads into it. [Footnote 2/38] In the absence of any such limitation, it would
seem that they were intended to cover all judicial proceedings, whether instituted
for crimes allegedly committed before capture or later. Policy supports this view.
For such a construction is require for the security of our own soldiers, taken
for to say that it was intended to provide for enforcement of such provisions solely
by claim, after breach, of indemnity would be, in many instances, especially those
involving trial of nationals of a defeated nation by a conquering one, to deprive the
Articles of all force. Executed men are not much aided by post-war claims for
indemnity. I do not think the adhering powers' purpose was to provide only for
such ineffective relief.
prisoner, as much as for that of prisoners we take. And the opposite one leaves
Finally, the Government has argued that Article 60 has no application after the
prisoners of war open to any form of trial and punishment for offenses against the
law of war their captors may wish to use, while safeguarding them, to the extent of
power between the two belligerents. The premise is that Japan no longer needs
would be to make the treaty strain at a gnat and swallow the camel.
Page 327 U. S. 78
The United States has complied with neither of these Articles. It did not notify the
protecting power of Japan in advance of trial, as Article 60 requires it to do,
States to protect the rights of Japanese nationals, since Japan is now in direct
Page 327 U. S. 77
necessity still requires use of all the power necessary for actual combat.
in Item 89. [Footnote 2/39] It is said that, although this may be true, the
Furthermore the premise overlooks all the realities of the situation. Japan is a
defeated power, having surrendered, if not unconditionally, then under the most
merely gives Japan a right of indemnity against us, and that Article 60 was not
intended to give Yamashita any personal rights. I cannot agree. The treaties made
scarcely in a position to bargain with us or to assert her rights. Nor can her
by the United States are, by the Constitution, made the supreme law of the land. In
the absence of something in the treaty indicating that its provisions were not
Certainly, if there was the need of an independent neutral to protect her nationals
during the war, there is more now. In my opinion the failure to give the notice
is, as I conceive it, the duty of the courts of this country to insure the nation's
affirm that he has some, if but little, constitutional protection. Nor does the Court
defend what was done. I think the effect of what it does is in substance to deny him
all such safeguards. And this is the great issue in the cause.
What is more important, there was no compliance with Article 63 of the same
Convention. Yamashita was not tried "according to the same procedure as in the
For it is exactly here we enter wholly untrodden ground. The safe signposts to the
case of persons belonging to the armed forces of the detaining Power." Had one of
rear are not in the sum of protections surrounding jury trials or any other
our soldiers or officers been tried for alleged war crimes, he would have been
proceeding known to our law. Nor is the essence of the Fifth Amendment's
entitled to the benefits of the Articles of War. I think that Yamashita was equally
entitled to the same protection. In any event, he was entitled to their benefits
specific constitutional safeguards in trial, though there are some without which the
under the provisions of Article 63 of the Geneva Convention. Those benefits he did
justice, albeit stern in measure to the guilt established, the heart of the security lies
in two things. One is that conviction shall not rest in any essential part upon
unchecked rumor, report, or the results of the prosecution's ex
Wholly apart from the violation of the Articles of War and of the Geneva
parte investigations, but shall stand on proven fact; the other, correlative, lies in a
fair chance to defend. This embraces at the least the rights to know with reasonable
clarity in advance of the trial the exact nature of the offense with which one is to be
Page 327 U. S. 79
charged; to have reasonable time for preparing to meet the charge, and to have the
aid of counsel in doing so, as also in the
accept or to understand the Court's ruling concerning the applicability of the due
process clause of the Fifth Amendment to this case. Not heretofore has it been held
Page 327 U. S. 80
that any human being is beyond its universally protecting spread in the guaranty of
a fair trial in the most fundamental sense. That door is dangerous to open. I will
trial itself, and if, during its course, one is taken by surprise, through the injection
have no part in opening it. For, once it is ajar, even for enemy belligerents, it can be
of new charges or reversal of rulings which brings forth new masses of evidence,
then to have further reasonable time for meeting the unexpected shift.
The Court does not declare expressly that petitioner, as an enemy belligerent, has
So far as I know, it has not yet been held that any tribunal in our system, of
no constitutional rights, a ruling I could understand, but not accept. Neither does it
have probative value in the mind of a reasonable man;" and, having received what
the military and, on the other hand, that the provisions of the Articles of War, of
weight may be given to the evidence received without restraint. [Footnote 2/41]
I cannot accept the view that anywhere in our system resides or lurks a power so
When to this fatal defect in the directive, however innocently made, are added the
unrestrained to deal with any human being through any process of trial. What
broad departures from the fundamentals of fair play in the proof and in the right to
apart from proceedings in the nature of trial and some semblance of judicial action,
accommodation with the due process of law which the Fifth Amendment demands.
is beside the point. Nor has any human being heretofore been held to be wholly
beyond elementary procedural protection by the Fifth Amendment. I cannot
All this the Court puts to one side with the short assertion that no question of due
suggestion which follows that the Court gives no intimation one way or the other
concerning
"He that would make his own liberty secure must guard even his enemy from
oppression, for if he violates this duty he establishes a precedent that will reach
Page 327 U. S. 81
It may be appropriate to add here that, although without doubt the directive was
[Footnote 2/1]
drawn in good faith in the belief that it would expedite the trial and that enemy
belligerents in petitioner's position were not entitled to more, that state of mind
and purpose cannot cure the nullification of basic constitutional standards which
has taken place.
It is not necessary to recapitulate. The difference between the Court's view of this
proceeding and my own comes down in the end to the view, on the one hand, that
there is no law restrictive upon these proceedings other than whatever rules and
regulations may be prescribed for their government by the executive authority or
105: "What may not be taken away is notice of the charge and an adequate
opportunity to be heard in defense of it." See 327 U. S.
[Footnote 2/8]
[Footnote 2/4]
The line of authorization within the military hierarchy extended from the
President, through the Joint Chiefs of Staff and General MacArthur, to General
Styer, whose order of September 25th and others were made pursuant to and in
conformity with General MacArthur's directive. The charge was prepared by the
"We have received for analysis and evaluation 423 exhibits consisting of official
documents of the United States Army, the United States State Department, and the
these facts or that the directive was binding on General Styer and the commission,
diaries taken from Japanese personnel, photographs, motion picture films, and
Manila newspapers."
[Footnote 2/9]
See notes 19 and 20.
"16. Evidence. -- a. The commission shall admit such evidence as in its opinion
Concerning the specific nature of these elements in the proof, the issues to which
they were directed, and their prejudicial effects, seetext infra and notes in 327 U. S.
commission's opinion would have probative value in the mind of a reasonable man.
[Footnote 2/5]
Queen v. Hepburn, 7 Cranch. 290; Donnelly v. United States, 228 U. S. 243, 228
U. S. 273. See 327 U. S. note 21.
[Footnote 2/6]
Motes v. United States, 178 U. S. 458, 178 U. S. 471; Paoni v. United States, 281 F.
801. See Parts 327 U. S. S. 56|>III.
In particular, and without limiting in any way the scope of the foregoing general
rules, the following evidence may be admitted:"
"(1) Any document while appears to the commission to have been signed or issued
officially by any officer, department, agency, or member of the armed forces of any
government, without proof of the signature or of the issuance of the document."
"(2) Any report which appears to the commission to have been signed or issued by
the International Red Cross or a member thereof, or by a medical doctor or any
medical service personnel, or by an investigator or intelligence officer, or by any
[Footnote 2/7]
other person whom the commission finds to have been acting in the course of his
duty when making the report."
"(3) Affidavits, depositions, or other statements taken by an officer detailed for that
Namely,
generally of civilian internees and prisoners of war; (2) torture, rape, murder, and
"(5) A copy of any document or other secondary evidence of its contents, if the
[Footnote 2/10]
In one instance, the president of the commission said:
"The rules and regulations which guide this Commission are binding upon the
Commission and agencies provided to assist the Commission. . . . We have been
authorized to receive and weigh such evidence as we can consider to have probative
value, and further comments by the Defense on the right which we have to accept
[Footnote 2/14]
Cf. note 13.
[Footnote 2/15]
In addition, the findings set forth that captured orders of subordinate officers gave
[Footnote 2/11]
Cf. text infra at note 19 concerning the prejudicial character of the evidence.
[Footnote 2/12]
Note 4.
proof that "they at least" ordered acts "leading directly to" atrocities; that
"the proof offered to the Commission alleged criminal neglect . . . as well as
complete failure by the higher echelons of command to detect and prevent cruel
and inhuman treatment accorded by local commanders and guards;"
and that, although "the defense had established the difficulties faced by the
accused" with special reference, among other things, to the discipline and morale
[Footnote 2/13]
of his troops under the "swift and overpowering advance of American forces," and
still he was an officer of long experience; his assignment was one of broad
responsibility; it was his duty "to discover and control" crimes by his troops, if
charge itself was not drawn to state, and was insufficient to support, a finding of
"The Commission concludes: (1) that a series of atrocities and other high crimes
have been committed by members of the Japanese armed forces under your
And, reasonably, the word could be taken in the context of the charge to mean
command against the people of the United States, their allies, and dependencies
throughout the Philippine Islands; that they were not sporadic in nature, but in
and mere failure to discover. In capital cases, such ambiguity is wholly out of place.
The proof was equally ambiguous in the same respect, so far as we have been
noncommissioned officers; (2) that, during the period in question, you failed to
informed, and so, to repeat, were the findings. The use of "willfully," even qualified
by a "must have," one time only in the findings hardly can supply the absence of
that or an equivalent word or language in the charge or in the proof to support that
concurring, the Commission finds you guilty as charged and sentences you to death
by hanging."
(Emphasis added.)
[Footnote 2/16]
See note 15.
[Footnote 2/17]
commander of armed forces of Japan at war with the United States of America and
its allies, unlawfully disregarded and failed to discharge his duty as commander to
control the operations of the members of his command, permitting them to
commit brutal atrocities and other high crimes against people of the United States
and of its allies and dependencies, particularly the Philippines, and he, General
The charge, set forth at the end of this note, is consistent with either theory -- or
both -- and thus ambiguous, as were the findings. Seenote 15. The only word
implying knowledge was "permitting." If "willfully" is essential to constitute a
crime or charge of one, otherwise subject to the objection of "vagueness," cf.
Screws v. United States, 325 U. S. 91, it would seem that "permitting" alone would
[Footnote 2/18]
Cf. Text infra, 327 U. S.
[Footnote 2/19]
(Emphasis added.)
Thereafter, this type of evidence was consistently received, and again by the
undisputed statement of counsel, as the sole proof of many of the specifications of
"I think the Prosecution should consider the desirability of striking certain items.
the bills a procedure which they characterized correctly, in my view, as having, "in
The Commission feels that there must be witnesses introduced on each of the
effect, stripped the proceeding of all semblance of a trial, and converted it into
an ex parte investigation."
[Footnote 2/20]
rejected."
This perhaps consisted in the showing of the so-called "propaganda" film, "Orders
(Emphasis added.)
from Tokyo," portraying scenes of battle destruction in Manila, which counsel say
"was not, in itself, seriously objectionable." Highly objectionable, inflammatory
Later evidence of the excluded type was offered, to introduction of which the
and prejudicial, however, was the accompanying sound track with comment that
the film was "evidence which will convict," mentioning petitioner specifically by
name.
that,
[Footnote 2/21]
"after further consideration, the Commission reverses that ruling [of November 1]
and affirms its prerogative of receiving and considering affidavits or depositions, if
it chooses to do so, for whatever probative value the Commission believes they may
manner of incidents, rumors, reports, etc., were among these. Many instances, too,
are shown of the use of opinion evidence and conclusions of guilt, including reports
testimony."
made after ex parte investigations by the War Crimes Branch of the Judge
Advocate General's Department, which it was and is urged had the effect of
It then added:
"The Commission directs the prosecution again to introduce the affidavits or
depositions then in question, and other documents of similar nature which the
prosecution stated has been prepared for introduction."
"putting the prosecution on the witness stand" and of usurping the commission's
function as judge of the law and the facts. It is said also that some of the reports
were received as the sole proof of some of the specifications.
[Footnote 2/22]
[Footnote 2/23]
[Footnote 2/26]
Typical of the items are allegations that members of the armed forces of Japan
In support of the motion, counsel indicated surprise by saying that, though it was
assumed two or three new specifications might be added, there had been no
expectation of 59 "about entirely new persons and times." The statement
"[d]uring the months of October, November, and December, 1944 [of] brutally
continued:
"We have worked earnestly seven days a week in order to prepare the defense on
Manila,"
64 specifications. And when I say 'prepare the defense,' sir, I do not mean merely
an affirmative defense, but to acquaint ourselves with the facts so that we could
and,
"On or about 19 February 1945, in the Town of Cuenca, Batangas Province, brutally
". . . 'In advance of trial' means: sufficient time to allow the defense a chance to
Lanbo, Felisa Apuntar, Elfidio Lunar, Victoriana Ramo, and 978 other persons, all
unarmed noncombatant civilians, pillaging and unnecessarily, deliberately, and
"We earnestly state that we must have this time in order adequately to prepare the
defense. I might add, sir, we think this is important to the accused, but far more
important than any rights of this accused, we believe, is the proposition that this
[Footnote 2/24]
The supplemental bill contains allegations similar to those set out in the original
bill. See note 23. For example, it charged that members of the armed forces of
Japan under the command of the accused "during the period from 9 October 1944
to about 1 February 1945 at Cavite City, Imus, and elsewhere in Cavite Province,"
The commission went on to question the need for all of the six officers representing
were permitted to commit the acts of "brutally mistreating, torturing, and killing or
the defense to be present during presentation of all the case, suggested one or two
would be adequate and others "should be out of the courtroom" engaged in other
matters, and strongly suggested bringing in additional counsel in the midst of the
[Footnote 2/25]
trial, all to the end that "need to request continuance may not arise."
[Footnote 2/28]
articles shall be so prescribed: Provided further, That all rules made in pursuance
of this article shall be laid before the Congress annually."
See note 9.
(Emphasis added.) 10 U.S.C. 1509.
[Footnote 2/29]
[Footnote 2/30]
Article 25 is as follows:
Another revision of the Articles of War took place in 1920. At this time, Article 15
"A duly authenticated deposition taken upon reasonable notice to the opposite
party may be read in evidence before any military court or commission in any
case not capital, or in any proceeding before a court of inquiry or a military
board, if such deposition be taken when the witness resides, is found, or is about to
go beyond the State, Territory, or district in which the court, commission, or board
is ordered to sit, or beyond the distance of one hundred miles from the place of
board, or appointing authority that the witness, by reason of age, sickness, bodily
that, by the law of war, may be lawfully triable by such military commissions,
(Emphasis added.)
The 1920 amendment put in the words "by statute or" before the words "by the law
of war" and omitted the word "lawfully."
[Footnote 2/31]
Speaking at the Hearings before the Committee on Military Affairs, House of
Representatives, 62nd Cong., 2d Sess., printed as an Appendix to S.Rep.229, 63rd
Cong., 2d Sess., General Crowder said:
"The next article, No. 15, is entirely new, and the reasons for its insertion in the
code are these: in our War with Mexico, two war courts were brought into existence
by orders of Gen. Scott, viz., the military commission and the council of war. By the
by court-martial, I was afraid that, having made a special provision for their
military commission, Gen. Scott tried cases cognizable in time of peace by civil
courts, and by the council of war, he tried offenses against the laws of war.The
military commission and other war courts; so this new article was
council of war did not survive the Mexican War period, and, in our subsequent
introduced. . . ."
wars, its jurisdiction has been taken over by the military commission, which,
during the Civil War period, tried more than 2,000 cases. While the military
"It just saves to these war courts the jurisdiction they now have and makes it a
commission has not been formally authorized by statute, its jurisdiction as a war
court has been upheld by the Supreme Court of the United States. It is an
the field in time of war will be at liberty to employ either form of court that
happens to be convenient. Both classes of courts have the same procedure. For the
preserved. In the new code, the jurisdiction of courts-martial has been somewhat
have referred, I insert here an explanation from Winthrop's Military Law and
There will be more instances in the future than in the past when the jurisdiction of
Precedents --"
courts-martial will overlap that of the war courts, and the question would arise
whether Congress having vested jurisdiction by statute the common law of
war jurisdiction was not ousted. I wish to make it perfectly plain by the new
article that, in such cases, the jurisdiction of the war court is concurrent."
S.Rep. No.229, 63rd Cong., 2d Sess., p. 53. (Emphasis added.)
" The military commission -- a war court -- had its origin in G.O. 20, Headquarters
of the Army at Tampico, February 19, 1847 (Gen. Scott). Its jurisdiction was
confined mainly to criminal offenses of the class cognizable by civil courts in time
of peace committed by inhabitants of the theater of hostilities. A further war court
was originated by Gen. Scott at the same time, called 'council of war,' with
jurisdiction to try the same classes of persons for violations of the laws of war,
And later, in 1916, speaking before the Subcommittee on Military Affairs of the
mainly guerillas. These two jurisdictions were united in the later war court of the
Senate at their Hearings on S.3191, a project for the revision of the Articles of War,
Civil War and Spanish War periods, for which the general designation of 'military
64th Cong., 1st Sess., printed as an Appendix to S.Rep.230, 64th Cong., 1st Sess.,
recognition in section 30, act of March 3, 1863, 12 Stat. 736, and in various other
statutes of that period. The United States Supreme Court has acknowledged the
validity of its judgments (Ex parte Vallandingham, 1 Wall. 243 and Coleman v.
Tennessee, 97 U. S. 509). It tried more than 2,000 cases during the Civil War and
commission is our common law war court. It has no statutory existence, though it
designation 'persons subject to military law,' and provided that they might be tried
court with jurisdiction assimilated to that of justices of the peace and police courts,
[Footnote 2/33]
Winthrop, speaking of military commissions at the time he was writing, 1896, says:
" Yet, as I have said, these war courts never have been formally authorized by
statute."
(1) Crimes and statutory offences cognizable by State or U.S. courts, and which
would properly be tried by such courts if open and acting; (2) Violations of the
" Gen. Crowder: Out of usage and necessity. I thought it was just as well, as
(2d ed.1943):
revision of the articles of war, pursuant to instructions of the Chief of Staff, March
cases: offenses against the laws of war, breaches of military regulations, and civil
10, 1915," included in Revision of the Articles of War, Comparative Prints, Etc.,
crimes which, where the ordinary courts have ceased to function, cannot be tried
normally."
"A number of articles . . . of the revision have the effect of giving courts-martial
(Emphasis added.) Fairman, 265-266. See also Davis, A Treatise on the Military
jurisdiction over certain offenders and offenses which, under the law of war or by
statute, are also triable by military commissions, provost courts, etc. Article 15 is
introduced for the purpose of making clear that, in such cases, a court martial has
[Footnote 2/34]
In addition to the statements of General Crowder with relation to Article 15, set out
in note 31, supra, see the following statements made with reference to Article 25 in
1912 at a hearing before the Committee on Military Affairs of the House:
"We come now to article 25, which relates to the admissibility of depositions. . . . It
will be noted further that the application of the old article has been broadened to
investigation." This article was drafted so that "The prohibition should reach all
Articles of War and other Related Statutes, and Explanatory Notes, Printed for use
of the Senate Committee on Military Affairs, 64th Cong., 1st Sess., 17, included in
Revision of the Articles of War, Comparative Prints, Etc., 1904-1920, J.A.G.O.
[Footnote 2/36]
Scott. It had jurisdiction to try all cases usually cognizable in time of peace by civil
courts. Gen. Scott created another war court, called the 'council of war,' with
jurisdiction to try offenses against the laws of war. The constitution, composition,
and jurisdiction of these courts have never been regulated by statute. The council
informed, however -- and the record shows this at least as to Japan -- that, at the
of war did not survive the Mexican War period, since which its jurisdiction has
beginning of the war, both the United States and Japan announced their intention
been taken over by the military commission. The military commission received
continues, perhaps with greater reason, if not effect, despite the end of
affirmed and supported by all our courts. It was extensively employed during the
Civil War period and also during the Spanish-American War. It is highly desirable
that this important war court should be continued to be governed as heretofore, by
the laws of war, rather than by statute."
S.Rep. No.229, 63d Cong., 2d Sess., 59; cf. S.Rep. 130, 64th Cong., 1st Sess., 54-55.
(Emphasis added.) See also Hearings before the Subcommittee of the Committee
on Military Affairs of the Senate on Establishment of Military Justice, 66th Cong.,
1st Sess., 1182-1183.
Further evidence that procedural provisions of the Articles were intended to apply
to all forms of military tribunal is given by Article 24, 10 U.S.C. 1495, which
provides against compulsory self-incrimination "before a military court,
Article 82 provides:
"The provisions of the present Convention must be respected by the High
Contracting Parties under all circumstances."
"In case, in time of war, one of the belligerents is not a party to the Convention, its
provisions shall nevertheless remain in force as between the belligerents who are
parties thereto."
It is not clear whether the Article means that, during a war, when one of the
belligerents is not a party to the Convention, the provisions must nevertheless be
applied by all the other belligerents to the prisoners of war not only of one another,
but also of the power that was not a party thereto, or whether it means that they
of a binding treaty which codifies them. See U.S. War Dep't Basic Field Manual,
need not be applied to soldiers of the nonparticipating party who have been
captured. If the latter meaning is accepted, the first paragraph would seem to
contradict the second.
[Footnote 2/37]
Title III of the Convention, which comprises Articles 7 to 67, is called "Captivity." It
edited by Des Gouttes, pp. 21-34) provided in Article 92 that the provisions of the
(Articles 27-34); Section IV, "External Relations of Prisoners of War" (Articles 35-
Convention
41), and Section V, "Prisoners' Relations with the Authorities" (Articles 42-67).
Thus, Title III regulates all the various incidents of a prisoner of war's life while in
"ne cesseront d'etre obligatories qu'au cas ou l'un des Etats belligerents participant
captivity.
a la Convention se trouve avoir a combattre les forces armees d'un autre Etat que
n'y serait par parties at a l'egard de cet Etat seulement."
See Rasmussen, Code des Prisonniers de Guerre (1931) 70. The fact that this
condition of captivity. Chapter 2 (Articles 43-44) gives prisoners of war the right to
suggested article was not included in the Geneva Convention would indicate that
appoint agents to represent them. Chapter 3 is divided into three subsections, and
the nations in attendance were avoiding a decision on this problem. But I think it
shows more -- that is, it manifests an intention not to foreclose a future holding
that, under the terms of the Convention, a state is bound to apply the provisions to
Moreover, if this view is wrong and the Geneva Convention is not strictly binding
upon the United States as a treaty, it is strong evidence of and should be held
of Chapter 3, is concerned not with mere problems of discipline, as is the latter, but
with the more serious matters of trial leading to imprisonment or possible sentence
warfare. Yamashita is as much entitled to the benefit of such rules as to the benefit
Law 143, 153. The Court, however, would have the distinction between subsection 2
and subsection 3 one between minor disciplinary action against a prisoner of war
for acts committed while a prisoner and major judicial action against a prisoner of
possible."
war for acts committed while a prisoner. This narrow view not only is highly
strained, confusing the different situations and problems treated by the two
Thus, at the most, subjection 1 contains, in some of its articles, the same
ambiguities, and is open to the same problem, that we are faced with in construing
to secure, for our own as well as for enemy captive military personnel.
Articles 60 and 63. It cannot be said therefore that all of chapter 3, and especially
subsection 3, relate only to acts committed by prisoners of war after capture, for
At the most, there would be logic in the Court's construction if it could be said that
all of Chapter 3 deals with acts committed while a prisoner of war. Of course,
subsection 2 does, because of the very nature of its subject matter. Disciplinary
action will be taken by a captor power against prisoners of war only for acts
committed by prisoners after capture.
[Footnote 2/38]
But it is said that subsection 7 deals exclusively with acts committed by a prisoner
of war after having become a prisoner, and this indicates subsection 3 is limited
similarly. This ignores the fact that some of the articles in subsection 1 appear, on
their face, to apply to all judicial proceedings for whatever purpose instituted.
Article 46, for example, provides in part:
"Punishments other than those provided for the same acts for soldiers of the
national armies may not be imposed upon prisoners of war by the military
"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."
"This advice shall contain the following information:"
"a) Civil state and rank of prisoner;"
"c) Specification of the [count] or counts of the indictment, giving the legal
would not punish its own soldiers for the same offences. Similarly, Article 47 in
provisions applicable."
"If it is not possible to mention in that advice the court which will pass upon the
matter, the date of opening the trial, and the place where it will take place, this
the directive commanded and the commission followed out, lies "in the
as soon as possible, and at all events at least three weeks before the opening of the
trial."
tendered would give in proving or disproving the charge or as it might think would
"have value in the mind of a reasonable man." Nor is it enough to establish the
Article 63 reads:
"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
[Footnote 2/42]
[Footnote 2/39]
Item 89 charged the armed forces of Japan with subjecting to trial certain named
In re Yamashita
U.S. Supreme Court
327 U.S. 1, 13-16, 28, 34-35 (1946)
FACTS
After World War II, Japanese General Tomoyuki Yamashita was tried before a U.S.
military tribunal in Manilla for war crimes committed by troops under his
command.
-U.S. claimed that D failed to discharge his duty as a commander to control the
operations of the members of his command, allowing them to commit brutal
atrocities and other high crimes against the U.S. and allies and was in violation of
laws of war.
ISSUE
Does the law of war impose upon an army commander to take appropriate
measures to control his troops for prevention of violations of the law of war which
are likely to attend occupation of hostile territory, and whether he may be charged
with personal responsibility for the failure to take such measures when violations
result?
HOLDING
There is an affirmative duty to take such measures as were in his power and
appropriate in the circumstances to protect prisoners of war and civilians.
DISCUSSION
Purpose of the law is to protect civilians and prisoners of war from brutality.