* Nos. 61 Miscellaneous and 672. October Term, 1945.

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 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, March 9, 1919, 14 Am. J. Int. L. 95, 121. See also memorandum of American commissioners concurring on this point, id., at p. 141. The treaties of peace 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, 496–7.

2 See cases mentioned in Ex parte Quirin, supra, p. 32, note 10, and in 2 Winthrop, supra, *1310–1311, n. 5; 14 Op. A. G. 249 (Modoc Indian Prisoners).

3 Failure of an officer to take measures to prevent murder of an inhabitant of an occupied country committed in his presence. Gen. Orders No. 221, Hq. Div. of the Philippines, August 17, 1901. And in Gen. Orders No. 264, Hq. Div. of the 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 to prevent” it.

4 In its findings the commission took account of the difficulties “faced by the accused, with respect not only to the swift and overpowering advance of American forces, but also to errors of his predecessors, weakness in organization, equipment, supply . . . , training, communication, discipline and morale of his troops “, 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 weight 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 guilty of such a violation

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.”

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: . . . “

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 15 is new. We have included in article 2 as subject to military law a 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 is recognized by statute law. As long as the articles embraced them in the designation ‘persons subject to military law,’ and provided that they might be tried by court-martial, I was afraid that, having made a special provision for their trial by court-martial, [Arts. 12,13, and 14] it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced. . . .” [Sen. R. 130, 64th Cong., 1st Sess., p. 40.]

8 Part 1 of Chapter 3, “General Provisions,” provides in Articles 45 and 46 that prisoners of war are subject to the regulations in force in the armies of the detaining power, that punishments other than those provided “for the same acts for soldiers of the national armies” may not be imposed on prisoners of war, and that “collective punishment for individual acts” is forbidden. Article 47 provides that “Acts constituting an offense against discipline, and particularly attempted escape, shall be verified immediately; for all prisoners of war, commissioned or not, preventive arrest shall be reduced to the absolute minimum. . . . Judicial proceedings against prisoners of war shall be conducted as rapidly as the circumstances permit. . . . In all cases the duration of preventive imprisonment shall be deducted from the disciplinary or the judicial punishment inflicted.”

Article 48 provides that prisoners of war, after having suffered “the judicial or 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 of attempted escape may be subjected to special surveillance.” Article 49 recites that prisoners “given disciplinary punishment may not be deprived of the prerogatives attached to their rank.” Articles 50 and 51 deal with escaped prisoners who have been retaken or prisoners who have attempted to escape. Article 52 provides: “Belligerents shall see that the competent authorities exercise the greatest leniency in deciding the question of whether an infraction committed by a prisoner of war should be punished by disciplinary or judicial measures. . . . This shall be the case especially when it is a question of deciding on acts in connection with escape or attempted escape. . . . A prisoner may not be punished more than once because of the same act or the same count.”

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. 8. Dept. of State bull., Vol. XIII, No. 317, p. 125.

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, “subjecting to trial without prior notice to a representative of the protecting power, without opportunity to defend, and without counsel; denying opportunity to appeal from the sentence Tendered; failing to notify the protecting power of the sentence pronounced; and executing a death sentence without communicating to the representative of the protecting power the nature and circumstances of the offense charged.” It might be suggested that if Article 60 is inapplicable to petitioner it is inapplicable in the cases specified, and that hence he could not be lawfully held or convicted on a charge of failing to require the notice, provided for in Article 60, to be given.

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 as ‘prisoners rather than with offenses against the law of war committed by them as enemy combatants. But apart from this consideration, independently of the notice requirements of the Geneva Convention, it is a violation of the law of war, on which there could be a conviction if supported by evidence, to inflict capital punishment on prisoners of war without affording to them opportunity to make a defense. 2 Winthrop, supra, *434–435,1241; Article 84, Oxford Manual; U. S. War Dept., Basic Field Manual, Rules of Land Warfare (1940) par. 356; Lieber’s Code, G. O. No. 100 (1863) Instructions for the Government of Armies of the United States in the Field, par. 12; Spaight, War Rights on Land, 462, n.

Further, the commission, in making its findings, summarized as follows the charges, on which it acted, in three classes, any one of which, independently of the others if supported by evidence, would be sufficient to support the conviction: (1) execution or massacre without trial and maladministration generally of civilian internees and prisoners of war; (2) brutalities committed upon the civilian population, and (3) burning and demolition, without adequate military necessity, of a large number of homes, places of business, places of religious worship, hospitals, public buildings and educational institutions.

The commission concluded: “ (1) that a series of atrocities and other high crimes have been committed by members of the Japanese armed foroes” under command of petitioner “against people of the United States, their allies and dependencies; . . . that they were not sporadic in* nature, but in many cases were methodically supervised by Japanese officers and non-commissioned officers”; (2) that during the period in question petitioner “failed to provide effective control of [his] troops, as was required by the circumstances.” The commission said: “Where murder and rape and vicious, revengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and “the circumstances surrounding them.”

The commission made no finding of non-compliance with the Geneva Convention. Nothing has been brought to our attention from which we could conclude that the alleged noncompliance with Article 60 of the Geneva Convention had any relation to the commission’s finding of a series of atrocities committed by members of the forces under petitioner’s command, and that he failed to provide effective control of his troops, as was required by the circumstances; or which could support 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.

1 Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U. S. 221.

2 Armour Packing Co. v. United States, 209 U. S. 56,83–84; United States v. Cohen Grocery Co., 255 U. S. 81; cf. Screws v. United States, 325 U. S. 91. See note 17 and text.

3 Hawk v. Olpon, No. 17, October Term, 1945, decided November 13, 1945; Snyder v. Massachusetts, 291 U. S. 97, 105: “What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it.” See Part III.

4 The commission’s findings state: “We have received for analysis and evaluation 423 exhibits consisting of official documents of the United States Army, the United States Department, and the Commonwealth of the Philippines; affidavits; captured enemy documents or translations thereof; diaries taken from Japanese personnel, photographs, motion picture films, and Manila newspapers.” See notes 19 and 20.

Concerning the specific nature of these elements in the proof, the issues to which they were directed, and their prejudicial effects, see text infra and notes in Part II.

5 Queen v. Hepburn, 7 Cranch. 289; Qpnnelly v. United States, 228 U. S. 243, 273. See Part II; note 21.

6 Motes v. United States, 178 U. S. 471; Paoni v. United States, 281 Fed. 801. See Parts II and III.

7 See Part II at notes 10, 19; Part III.

8 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 Mac- Arthur’s directive. The charge was prepared by the Judge Advocate General’s Department of the Army. There is no dispute concerning these facts or that the directive was binding on General Styer and the commission, though it is argued his own authority as area commanding general was independently sufficient to sustain what was done.

9 “ 16. Evidence.—a. The commission shall admit such evidence as in its opinion would be of assistance in proving or disproving the charge, or such as in the commission’s opinion would have probative value in the mind of a reasonable man. In particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted:

(1) Any document which 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 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 purpose by military authority.

(4) Any diary, letter or other document appearing to the commission to contain information relating to the charge.

(5) A copy of any document or other secondary evidence of its contents, if the commission believes that the original is not available or cannot be produced without undue delay. . . .”

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 this evidence is decidedly out of order.” But see note 19.

11 Cf. text infra at note 19 concerning the prejudicial character of the evidence.

12 Note 4.

13 Namely, “(1) Starvation, execution or massacre without trial and maladministration generally of civilian internees and prisoners of war; (2) Torture, rape, murder and mass execution of very large numbers of residents of the Philippines, including women and children and members of religious orders, by starvation, beheading, bayoneting, clubbing, hanging, burning alive, and destruction by explosives; (3) Burning and demolition without adequate military necessity of large numbers of homes, places of business, places of religious worship, hospitals, public buildings, and educational institutions. In point of time, the offenses extended throughout the period the Accused was in command of Japanese troops in the Philippines. In point of area, the crimes extended through the Philippine Archipelago, although by far the most of the incredible acts occurred on Luzon.”

14 Cf. note 13.

15 In addition the findings set forth that captured orders of subordinate officers gave proof that “they, at least,” ordered acts “leading directly t o “ atrocities; that “the proof offered to : the Commission alleged criminal neglect . . . as well as complete failure by the higher echelons of command to delect and prevent eruel 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 of his | troops under the “swift and overpowering advance of American forces,” and notwithstanding he had stoutly maintained his complete ignorance of the crimes,, still he was an officer of I long experience; his assignment was one of broad responsibility; it was his duty “to discover and control” crimes by his troops, if widespread, and therefore

“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 command against the R people of the United States, their allies and dependencies throughout the Philippine Islands; B that they were not sporadic in nature but in many cases were methodically supervised by K Japanese officers and noncommissioned officers; (2) that during the period in question you g, failed to provide effective control of your troops as was required by the circumstances.

“Accordingly upon secret written ballot, two-thirds or more of the members concurring, the Commission finds you guilty as charged and sentences you to death by hanging.” (Emphasis added.)

16 See note 15.

17 The charge, set forth at the end of this note, is consistent with either theory—or both— and thus ambiguous, as were the findings. See note 15. The only word implying knowledge was “permitting.” If “wilfully” 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 hardly be sufficient to charge “wilful and intentional” action or omission; and, if taken to be sufficient to charge knowledge, it would follow necessarily that the charge itself was not drawn to state and was insufficient to support a finding of mere failure to detect or discover the criminal conduct of others.

At the most “permitting” could charge knowledge only by inference or implication. And reasonably the word could be taken in the context of the charge to mean “allowing” or “not preventing,” a meaning consistent with absence of knowledge 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 informed, and so, to repeat, were the findings. The use of “wilfully,” 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 essential element in the crime.

The charge was as follows: “Tomoyuki Yamashita, General Imperial Japanese Army, between 9 October 1944 and 2 September 1945, at Manila and at other places in the Philippine Islands, while 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 Tomoyuki Yamashita, thereby violated the laws of war.”

18 Cf. text infra Part IV.

19 On November 1, early in the trial, the president of the commission stated: “ I think the Prosecution should consider the desirability of striking certain items. The Commission feels that there must be witnesses introduced on each of the specifications or times. It has no objection to considering affidavits, but it is unwilling to form an opinion of a particular item based solely on an affidavit. Therefore, until evidence is introduced, these particular exhibits are rejected.” (Emphasis added.)

Later evidence of the excluded type was offered, to introduction of which the defense objected on various grounds including the prior ruling. At the prosecution’s urging the commission withdrew to deliberate. Later it announced that “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 have, without regard to the presentation of some partially corroborative oral testimony.” 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.” (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 the bills, a procedure which they characterize correctly in my view as having “in effect, stripped the proceeding of all semblance of a trial and converted it into an ex parte investigation.”

20 This perhaps consisted in the showing of the so-called “propaganda” film, “Orders from Tokyo,” portraying scenes of battle destruction in Manila, which counsel say “was not in itself seriously objectionable.” Highly objectionable, inflammatory and prejudicial, however, was the accompanying sound track with comment that the film was “evidence which will convict,” mentioning petitioner specifically by name.

21 Innumerable instances of hearsay, once or several times removed, relating to all 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 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 “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.

22 Also with Paragraph 82 of the Rules of Land Warfare.

23 Typical of the items are allegations that members of the armed forces of Japan under the command of the accused committed the acts “ During the months of October, November and December 1944 [of] brutally mistreating and torturing numerous unarmed noncombatant civilians at the Japanese Military Police Headquarters located at Cortabitarte and Mabini Streets, Manila” and “On or about 19 February 1945, in the Town of Cuenca, Batangas Province, brutally mistreating, massacring, and killing Jose M. Laguo, Esteban Magsamdol, Jose Lanbo, Felisa Apontar, Elfidio Lunar, Vietoriana Ramo, and 978 other persons, all unarmed noncombatant civilians, pillaging and unnecessarily, deliberately and wantonly devastating, burning and destroying large areas of that town.”

24 The supplemental bill contains allegations similar to those set out in the original bill. See note 23. For example, it charge 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,” were permitted to commit the acts of “brutally mistreating, torturing, and killing or attempting to kill, without cause or trial, unarmed noncombatant civilians.”

25 See note 39 and text, Part V.

26 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 continued:

“We have worked earnestly seven days a week in order to prepare the defense on 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 properly cross-examine the Prosecution’s witnesses.

“ . . . ‘In advance of trial’ means: Sufficient time to allow the Defense a chance to prepare its defense.

“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 Commission should not deviate from a fundamental American concept of fairness. . . .”

27 The commission went on to question the need for all of the six officers representing 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 trial, all to the end that “need to request continuance may not arise.”

28 See note 9.

29 Article 25 is as follows: “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 trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprisonment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases.” (Emphasis added.) 10U.S.C. § 1496.

Article 38 reads: “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: Provided further, That all rules made in pursuance of this article shall be laid before the Congress annually.” (Emphasis added.) 10 U.S.C. § 1509.

30 Another revision of the Articles of War took place in 1920. At this time Article 15 was slightly amended.

In 1916 Article 15 was enacted to read: “The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals.” (Emphasis added.)

The 1920 amendment put in the words “by statue or” before the words “by the law of war” and omitted the word “lawfully.”

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 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 council of war did not survive the Mexican War period, and in our subsequent 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 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 institution of the greatest importance in a period of war and should be preserved. In the new code the jurisdiction of courts-martial has been somewhat amplified by the introduction of the phrase Persons subject to military law. There will be more instances in the future than in the past when the jurisdiction of 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.)

And later, in 1916, speaking before the Subcommittee on Military Affairs of the Senate at their Hearings on S. 3191, a project for the revision of the Articles of War, 64th Cong., 1st Sess., printed as an Appendix to S. Rep. 230, 64th Cong., 1st Sess., General Crowder explained at greater length:

“ Article 15 is new. We have included in article 2 as subject to military law a number of persons who are also subject to trial by military commissions. A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law. As long as the articles embraced them in the designation ‘persons subject to military law,’ and provided that they might be tried by; court-martial, I was afraid that, having made a special provision for their court-martial, it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced. . . .”

“It just saves to these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with courts-martial, so that the military commander in 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 information of the committee and in explanation of these war courts to which I have referred I insert here an explanation from Winthrop’s Military Law and Precedents—

“ ‘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, mainly guerillas. These two jurisdictions were united in the later war court of the Civil War and Spanish War periods, for which the general designation of ‘military commission’ was retained. The military commission was given statutory recognition in section 30, act of March 3, 1863, and in various other statutes of that period. The United States Supreme Court has acknowledged the validity of its judgments (Ex parte Vallandigham, 1 Wall. 243 and Coleman v. Tennessee, 97 U. S. 509). It tried more than 2,000 cases during the Civil War and reconstruction period. Its composition, constitution, and procedure follows the analogy of courts-martial. Another war court is the provost court, an inferior court with jurisdiction assimilated to that of justices of the peace and police courts; and other war courts variously designated ‘courts of conciliation,’ ‘arbitrators,’ ‘military tribunals’ have been convened by military commanders in the exercise of the war power as occasion and necessity dictated.’

“Yet, as I have said, these war courts never have been formally authorized by statute.”

“Senator Colt: They grew out of usage and necessity?”

“Gen. Crowder: Out of usage and necessity. I thought it was just as well, as inquiries would arise, to put this information in the record.” S. Rep. No. 130, 64th Cong., 1st Sess. (1916) p. 40. (Emphasis added.)

Article 15 was also explained in the “Report of a committee on the proposed revision of the articles of war, pursuant to instructions of the Chief of Staff, March 10,1915,” included in Revision of the Articles of War, Comparative Prints, Etc., 1904–1920, J.A.G.O., as follows:

“A number of articles . . . of the revision have the effect of giving courts-martial 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 only a concurrent jurisdiction with such war tribunals.”

32 Of course, Articles 25 and 38, at the same time that they gave protection to defendants before military commissions, also provided for the application by such tribunals of modern rules of procedure and evidence.

33 Winthrop, speaking of military commissions at the time he was writing, 1896, says: “The offenses cognizable by military commissions may thus be classed as follows: (1) Crimes and statutory offenses cognizable by State or U. S. courts, and which would properly be tried by such courts if open and acting; (2) Violations of the laws and usages of war cognizable by military tribunals only; (3) Breaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of War.” (Emphasis added.) Winthrop, at *1309. And cf. Fairman, The Law of Martial Rule (2d ed. 1943): Military commissions take cognizance of three categories of criminal cases: offenses against the laws of war, breaches of military regulations, and civil crimes which, where the ordinary courts have ceased to function, cannot be tried normally.” (Emphasis added.) Fairman, 265–266. See also Davis, A Treatise on the Military Law of the United States (1915) 309– 310.

34 Note 31.

35 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 include military commissions, courts of inquiry, and military boards.

“Mr. Sweet. Please explain what you mean by military commission.

“Gen. Crowder. That is our common law of war court, and was referred to by me in a prior hearing. [The reference is to the discussion of Article 15.] This war court came into existence during the Mexican War, and was created by orders of Gen. 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 of war did not survive the Mexican War period, since which its jurisdiction has been taken over by the military commission. The military commission received express recognition in the reconstruction acts, and its jurisdiction has been 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, commission, court of inquiry, or board, or before an officer conducting an investigation.” This article was drafted so that “The prohibition should reach all witnesses, irrespective of the class of military tribunal before which they appear. . . .” (Emphasis added.) Comparative Print showing S. 3191 with the Present 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.

36 We are informed that Japan has not ratified the Geneva Convention. See discussion of Article 82 in the paragraphs below. We are also informed, however—and the record shows this at least as to Japan—that at the beginning of the war both the United States and Japan announced their intention to adhere to the provisions of that treaty. The force of that understanding continues, perhaps with greater reason if not effect, despite the end of hostilities. See note 40 and text.

Article 83 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 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.

“Legislative history” here is of some, if little, aid. A suggested draft of a convention on war prisoners drawn up in advance of the Geneva meeting by the International Committee of the Red Cross (Actes de la Conférence Diplomatique de Genève, edited by Des Gouttes, pp. 21–34) provided in Article 92 that the provisions of the Convention “ne cesseront d’être obligatories qu’au cas où l’un des Etats belligérents participant à la Convention se trouve avoir à combattre les forces armées d’un autre Etat que n’y serait par partie et à l’égard de cet Etat seulement.” See Rasmussen, Code des Prisonniers de Guerre (1931) 70. The fact that this suggested article was not included in the Geneva Convention would indicate that 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 prisoners of war of nonparticipating state. And not to foreclose such a holding is to invite one. We should, in my opinion, so hold, for reasons of security to members of our own armed forces taken prisoner, if for no others.

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 binding as representing what have become the civilized rules of international warfare. Yamashita is as much entitled to the benefit of such rules as to the benefit of a binding treaty which codifies them. See U. S. War Dep’t, Basic Field Manual, Rules of Land Warfare (1940), par. 5–b.

37 Title III of the Convention, which comprises Articles 7 to 67, is called “Captivity.” It contains Section I, “Evacuation of Prisoners of War” (Articles 7–8); Section II, “Prisoners-of-War Camps” (Articles 9–26); Section III, “Labor of Prisoners of War” (Articles 27–34); Section IV, ‘‘External Relations of Prisoners of War (Articles 35–41); 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 captivity.

Section V, with which we are immediately concerned, is divided into three chapters. Chapter 1 (Article 42) gives a prisoner of war the right to complain of his condition of captivity. Chapter 2 (Articles 43–44) gives prisoners of war the right to appoint agents to represent them. Chapter 3 is divided into three subsections and is termed “Penalties Applicable to Prisoners of War.” Subsection 1 (Articles 45–53) contains various miscellaneous articles to be considered in detail later. Subsection 2 (Articles 54–59) contains provisions with respect to disciplinary punishments. And subsection 3 (Articles 60–67) which is termed “Judicial Suits “ contains various provisions for protection of a prisoner’s rights in judicial proceedings instituted against him.

Thus, subsection 3, which contains Articles 60 and 63, as opposed to subsection- 2, 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 of death; cf. Brereton, The Adminstration of Justice Among Prisoners of War by Military Courts (1935) 1 Proc. Australian & New Zealand Society of International 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 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 subdivisions. It defeats the most important protections subsection 3 was intended to secure, for our own as well as for enemy captive military personnel.

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.

But it is said that subsection 1 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 authorities and courts of the detaining Power.”

This seems to refer to war crimes as well as to other offenses; for surely a country cannot punish soldiers of another army for offenses against the law of war, when it would not punish its own soldiers for the same offenses. Similarly, Article 47 in subsection 1 appears to refer to war crimes as well as to crimes committed by a prisoner after his capture. It reads in part:

“Judicial proceedings against prisoners of war shall be conducted as rapidly as the circumstances permit; preventive imprisonment shall be limited as much as possible.”

Thus, at the most, subsection 1 contains, in some of its articles, the same ambiguities and is open to the same problem that we are faced with in construing 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 the meaning of subsection 3, in this argument, is related to the meaning of subsection 1; and subsection 1 is no more clearly restricted to punishments and proceedings in disciplinary matters than is subsection 3.

38 Article 60 pertinently is as follows: “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 advise shall contain the following information:

“a) Civil state and rank of prisoner;

“b) Place of sojourn or imprisonment;

“c) Specification of the [count] or counts of the indictment, giving the legal 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 information must be furnished to the representative of the protecting Power later, as soon as possible, and at all events, at least three weeks before the opening of the trial.”

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 armed forces of the detaining Power.”

39 Item 89 charged the armed forces of Japan with subjecting to trial certain named and other prisoners of war “without prior notice to a representative of the protecting power; without opportunity to defend, and without counsel; denying opportunity to appeal from the sentence rendered; failing to notify the protecting power of the sentence pronounced; and executed a death sentence without communicating to the representative of the protecting power the nature and circumstances of the offense charged.”

40 Nations adhere to international treaties regulating the conduct of war at least in part because of the fear of retaliation. Japan no longer has the means of retaliating.

41 There can be no limit to the admissibility or the use of evidence if the only test to be applied concerns probative value and the only test of probative value, as the directive commanded and the commission followed out, lies “in the Commission’s opinion,” whether that be concerning the assistance the “evidence” 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 semblance of a constitutional right that the commission declares, in receiving the evidence, that it comes in as having only such probative value, if any, as the commission decides to award it and this is accepted as conclusive.

42 II Complete Writings of Thomas Paine, ed. by Foner, 1945, p. 688.