Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-129              December 19, 1945

TOMOYUKI YAMASHITA, petitioner,
vs.
WILHELM D. STYER, Commanding General, United States Army Forces, Western
Pacific, respondent.

Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.
Maj. Robert M. Kerr for respondent.
Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

MORAN, C.J.:

Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the
Japanese Imperial Army in the Philippines, and now charged before an American Military
Commission with the most monstrous crimes ever committed against the American and
Filipino peoples, comes to this Court with a petition for habeas corpus and prohibition
against Lt. Gen. Wilhelm D. Styer, Commanding General of the United States Army
Forces, Western Pacific. It is alleged therein that petitioner after his surrender became a
prisoner of war of the United States of America but was later removed from such status
and placed in confinement as an accused war criminal charged before an American
Military Commission constituted by respondent Lieutenant General Styer; and he now
asks that he be reinstated to his former status as prisoner of war, and that the Military
Commission be prohibited from further trying him, upon the following grounds:

(1) That the Military Commission was not duly constituted, and, therefore, it is without
jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military
Commission cannot exercise jurisdiction therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the
implementing trial against petitioner, contrary to the provisions of the Geneva
Convention of July 27, 1892, and therefore, the Military Commission has no jurisdiction
to try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war;
and

(5) That the rules of procedure and evidence under which the Military Commission
purports to be acting denied the petitioner a fair trial.

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We believe and so hold that the petition for habeas corpus is untenable. It seeks no
discharge of petitioner from confinement but merely his restoration to his former status
as a prisoner of war, to be interned, not confined. The relative difference as to the degree
of confinement in such cases is a matter of military measure, disciplinary in character,
beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The
military Commission is not made party respondent in this case, and although it may be
acting, as alleged, without jurisdiction, no order may be issued in these case proceedings
requiring it to refrain from trying the petitioner.

Furthermore, this Court has no jurisdiction to entertain the petition even if the
commission be joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50,
61, ante), ". . . an attempt of our civil courts to exercise jurisdiction over the United
States Army before such period (state of war) expires, would be considered as a violation
of this country's faith, which this Court should not be the last to keep and uphold."
(Emphasis supplied) We have said this in a case where Filipino citizens were under
confinement, and we can say no less in a case where the person confined is an enemy
charged with the most heinous atrocities committed against the American and Filipino
peoples.

True that the rule was made applicable in time of war, and there is a conflict of opinion
as to whether war has already terminated. War is not ended simply because hostilities
have ceased. After cessation of armed hostilities, incident of war may remain pending
which should be disposed of as in time of war. "An important incident to a conduct of a
war is the adoption of measure by the military command not only to repel and defeat the
enemies but to seize and subject to disciplinary measures those enemies who in their
attempt to thwart or impede our military effort to have violated the law of the war." (Ex
parte Quirin, 317 US., 1; 63 Sup. Ct., 2.) Indeed, the power to create a Military
Commission for the trial and punishment of war criminals is an aspect of waging war.
And, in the language of a writer, a Military Commission "has jurisdiction so long as a
technical state of war continues. This includes the period of an armistice, or military
occupation, up to the effective date of a treaty agreement." (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)

Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), — and this
applicable in time of war as well as the time of peace — that this Court has no power to
review upon habeas corpus the proceedings of a military or naval tribunal, an that, in
such case, "the single inquiry, the test, is jurisdiction. That being established,
the habeas corpus must be denied and the petitioner discharged." (In re Grimley, 137
U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.) Following this rule in the instant case, we
find that the Military Commission has been validly constituted and it has jurisdiction
both over the person of the petitioner and over the offenses with which he is charged.

The Commission has been validly constituted by Lieutenant General Styer duly issued by
General Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in
accordance in authority vested in him and with radio communication from the Joint
Chiefs of Staff, as shown by Exhibits C, E, G, and H, attached by petition. Under
paragraph 356 of the Rules of the Land Welfare a Military Commission for the trial and
punishment of the war criminals must be designated by the belligerent. And the
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belligerent's representative in the present case is none other than the Commander in
Chief of the United States Army in the Pacific. According to the Regulations Governing
the Trial of the War Criminals in the Pacific, attached as Exhibit F to the petition, the
"trial of persons, units and organizations accused as a war criminals will be the Military
Commissions to be convened by or under the authority of the Commander in Chief,
United States Army Forces, Pacific." Articles of War Nos. 12 and 15 recognized the
"Military Commission" appointed by military command as an appropriate tribunal for the
trial and punishment of offenses against the law of the war not ordinarily tried by court
martial. (Ex parte Quirin, supra.) And this has always been the United States military
practice at since the Mexican War of 1847 when General Winfield Scott took the position
that, under the laws of war, a military commander has an implied power to appoint and
convene a Military Commission. This is upon the theory that since the power to create a
Military Commission is an aspect of waging war, Military Commanders have that power
unless expressly withdrawn from them.

The Military Commission thus duly constituted has jurisdiction both over the person of
the petitioner and over the offenses with which he is charged. It has jurisdiction over the
person of the petitioner by reason of his having fallen into the hands of the United States
Army Forces. Under paragraph 347 of the Rules of the Land Warfare, "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 hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of
the United States said:

From the very beginning of its history this Court has recognized and applied the
law of war as including that part of the law of nations which prescribes, for the
conduct of war, the status rights and duties and of enemy nations as well as of
enemy individuals. By the Articles of War, and especially Article 15, Congress has
explicitly provided, so far as it may constitutionally do so, that military tribunals
shall have jurisdiction to try offenders or offenses against the law of war in
appropriate cases. Congress, in addition to making rules for the government of our
Armed Forces, has thus exercised its authority to define and punish offenses
against the law of nations by sanctioning, within constitutional limitations, the
jurisdiction of military commissions to try persons and offenses which, according
to the rules and precepts of the law of nations, and more particularly the law of
war, are cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup.
Ct., 2.)

Petitioner is charged before the Military Commission sitting at Manila with having
permitted members of his command "to commit brutal atrocities and other high crimes
against the people of the United States and of its allies and dependencies, particularly
the Philippines," crimes and atrocities which in the bills of particulars, are described as
massacre and extermination of thousand and thousands of unarmed non combatant
civilians by cruel and brutal means, including bayoneting of children and raping of
young girls, as well as devastation and destruction of public, or private, and religious
property for no other motive than pillage and hatred. These are offenses against the laws
of the war as described in paragraph 347 of the Rules of Land Warfare.

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It is maintained, however, that, according to the Regulations Governing the Trial of War
Criminals in the Pacific. "the Military Commission . . . shall have jurisdiction over all of
Japan and other areas occupied by the armed forces commanded by the Commander in
Chief, United States Army Forces, Pacific" (emphasis supplied), and the Philippines is not
an occupied territory. The American Forces have occupied the Philippines for the purpose
of liberating the Filipino people from the shackles of Japanese tyranny, and the creation
of a Military Commission for the trial and punishment of Japanese war criminals is an
incident of such war of liberation.

It is maintained that Spain, the "protecting power" of Japan, has not been given notice
before trial was begun against petitioner, contrary to the provisions of the Geneva
Convention of July 27, 1929. But there is nothing in that Convention showing that notice
is a prerequisite to the jurisdiction of Military Commissions appointed by victorious
belligerent. Upon the other hand, the unconditional surrender of Japan and her
acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. It
may be stated, furthermore, that Spain has severed her diplomatic relation of Japan
because of atrocities committed by the Japanese troops against Spaniards in the
Philippines. Apparently, therefore, Spain has ceased to be the protecting power of Japan.

And, lastly, it is alleged that the rules of procedure and evidence being followed by the
Military Commission in the admission of allegedly immaterial or hearsay evidence,
cannot divest the commission of its jurisdiction and cannot be reviewed in a petition for
the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed.,
692; 42 Sup. Ct., 326).

For all foregoing, petition is hereby dismissed without costs.lawphi1.net

Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, JJ., concur.
Paras, J., concurs in the result.

Separate Opinions

OZAETA, J.,  concurring and dissenting:

I concur in the dismissal of the petition for habeas corpus and prohibition on the ground
that the Military Commission trying the petitioner has been legally constituted, and that
such tribunal has jurisdiction to try and punish the petitioner for offenses against the
law of war. (Ex parte Quirin, 317 U.S. 1; 63 Sup. Ct., 2.)

I dissent, however, from the portion of the opinion of the Court which cities and applies
herein its decision in the case Raquiza vs. Bradford (pp. 50, 61, ante ), to the effect that
an attempt of our civil court to exercise jurisdiction over the United States Army would
considered as a violation of this country's faith. The decision of Raquiza case, from which
I dissented, was based mainly of the case of Coleman vs. Tennessee (97 U. S., 509), in
which was mentioned merely by way of argument the rule of international law to effect
that a foreign army, permitted to march through a friendly country to be stationed in it,
by permission of its government or sovereign, is exempt from the civil and criminal

Page 4 of 24
jurisdiction of the place. After reviewing the facts and the ruling of the court in the
Coleman case, I said in my dissenting opinion in the Raquiza case the following:

. . . Thus it is clear that the rule of international law above mentioned formed no
part of the holding of the court in the said case.

Neither can such rule of international law of itself be applicable to the relation
between the Philippines and the United States, for the reason that the former is
still under the sovereign of the latter. The United States Army is not foreign to the
Philippines. It is here not by permission or invitation of the Philippine Government
but by right of sovereignty of the United States over the Philippines. It has the
same right to be here as it has to be in Hawaii or California. The United States has
the same obligation to defend and protect the Philippines, as it has to defend and
protect Hawaii or California, from foreign invasion. The citizens of the Philippines
owe the same allegiance to the United States of the America as the citizens of any
territory or States of the Union.

That the case of Coleman vs. Tennessee was erroneously invoked and applied by this
Court in the case of Raquiza vs. Bradford, was admitted by Mr. Wolfson, the attorney for
Lieutenant Colonel Bradford, who, notwithstanding the judgment in favor of his client,
moved this Court to modify the majority opinion "by eliminating all reference to the case
of Coleman vs. Tennessee (97 U.S. 509). because, as well pointed out in both dissenting
opinions, said case has no application whatever to the case at bar." .

The rule of international law mentioned in the Coleman case and erroneously applied by
analogy in the Raquiza case, has likewise no application whatever to the case at bar. A
mistake when repeated only becomes a blunder.

PERFECTO, J.,  concurring and dissenting:

1. FACTS IN THIS CASE

Petitioner prays that a writ of habeas corpus be issued directed to respondent Lt. Gen.
Wilhelm D. Styer, Commanding General, United Army Forces, Western Pacific,
commanding him to produce the body of the petitioner before this Court and that "he be
ordered returned to the status of an internee as a prisoner of war in conformity with the
provision of article 9 of the Geneva Convention of July 27, 1929, relative to the treatment
of prisoners of war and of paragraph 82 of the Rules of Land Warfare, F. M. 27-10,
United States War Department, and that a writ of prohibition be issued by this Court
prohibiting the respondent from proceeding with the trial, and that the petitioner be
discharged from the offenses and confinement aforesaid."

Prior to September 3, 1945, petitioner was the commanding general of the 14th Army
Group of the Imperial Japanese Army in the Philippines. On said date, he surrendered to
the United States and was interned in New Bilibid Prison, in Muntinlupa, in conformity
with the provision of article 9 of the Geneva Convention of July 27, 1929, relative to the
treatment of prisoners of war, and of paragraph 82 of the Rules of Land Warfare of the
United States War Department.

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On October 2, 1945, respondent caused to be served on petitioner a charge for violation
of the laws of war, signed by Colonel Alva C. Carpenter, wherein it is alleged that between
9 October, 1944, and 2 September, 1945, petitioner "while commander of the armed
forces of Japan at war with the United States and its allies, unlawfully disregarded and
failed it 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 the
people of the United States and its allies and dependencies, particularly the Philippines."
Thereafter petitioner was removed from the status of the prisoner of war and was placed
in confinement as an accused war criminal and is presently confined in the custody of
respondent at the residence of the United States High Commissioner of the Philippines in
Manila.

On October 1, 1945, by command of respondent and pursuant to authority contained in

a letter from the General Headquarters, United States Army Force, Western Pacific, dated
September 24, 1945, a Military Commission was appointed to try petitioner. At the same
time several officers were designated to conduct the prosecution and several others to act
as defense counsel.

The commission was instructed to follow the provisions of the letter of September 24,
1945, and was empowered to "make such rules for the conduct of the proceedings as it
shall deem necessary for a full and fair trial of the person before it. Such evidence shall
be admitted as would, in the opinion of the president of the commission, have probative
value to a reasonable man and is relevant and material to the charges before the
commission. The concurrence of at least two-thirds of the members of the commission
present shall be necessary for a conviction or sentence."

Said letter (Exhibit G) addressed to respondent by Brigadier General B. M. Fitch, "by

command of General MacArthur," empowers respondent "to appoint Military
Commissions for the trial of such persons accused of war crimes as may hereafter be
designated by this Headquarters," with the instructions that "all the records of trial
including judgment or sentence and the action of the appointing authority will be
forwarded to this Headquarters. Unless otherwise directed, the execution of judgment or
sentence in all cases will be withheld pending the action of the Commander in Chief.

On the same date "by Command of General MacArthur" (Exhibit H), respondent was
instructed to proceed immediately with the trial of General Tomoyuki Yamashita for the
charge served on petitioner on October 2, 1945 (Exhibit B).

Upon arraignment on October 8, 1945, by the above mentioned Military Commission,

petitioner entered a plea of not guilty. On the same date the prosecution filed a bill of
particulars (Exhibit 1) with 64 items of crimes, and on October 29, 1945, a supplemental
bill of particulars (Exhibit J) with many other additional items, adding up to 123, of the
specified crimes imputed to petitioner.

On October 19, 1945, petitioner's defense filed a motion to dismiss the case before the
Military Commission for the reasons that the charge, as supplemented by the bills of
particulars, "fails to state a violation of the laws of war by the accused, and that the
commission has no jurisdiction to try this cause." The motion was denied on October 29.

Page 6 of 24
On said day, which was the first day of trial, the prosecution offered in evidence an
affidavit of Naukata Utsunomia (Exhibit M) executed on October 1, 1945, and subscribed
and sworn to before Captain Jerome Richard on October 22, 1945. The affidavit was
made in Japanese through interpreter Tadashi Yabi. The defense objected to the
admission of said affidavit, invoking to said effect article 25 of the Articles of War
prohibiting the introduction of depositions by the prosecution in a capital case in
proceedings before a court martial or a Military Commission. (Exhibit L and N.)

Again on the same first day of trial, hearsay evidence was offered, defense counsel
objected, but the objection was again overruled. (Exhibits O and P.) The defense counsel
alleged then that the admission of hearsay evidence was violative of Article of War 38, the
manual for the court-martial, and the rules of evidence in criminal cases in the district
courts of the United States. It is alleged by petitioner that violations of legal rules of
evidence have continued and are continuing during the trial.

At the opening of the trial, "the prosecution stated that no notice of impending trial had
been given the protecting power of the Japan by the United States," such notice being
required by article 60 of the Geneva Convention of July 27, 1929, and of paragraph 133
of the Rules of Land Warfare, United States War Department.

2. REMEDIES PRAYED FOR

After alleging the above-mentioned facts, petitioner maintains that his confinement and
trial as a war criminal are illegal and in violation of articles 1 and 3 of the Constitution of
the United States and the Fifth Amendment thereto, and a certain other portions of said
Constitution, and laws of the United States, and article 3 of the Constitution of the
Philippines and certain other portions of said Constitution and laws of the Philippines
Islands, and of certain provisions of the Geneva Convention of July 27, 1929, in that:

(a) There being no martial law, no Military Government of occupied territory and no
active hostilities in the Philippines at the time of the appoint the same, the commission is
without jurisdiction.

(b) There being no charge of an offense against the laws of war by the petitioner, the
commission is without jurisdiction.

(c) The rules of procedure and evidence under which the Military Commission purports to
be acting deny the petitioner the fair trial guaranteed by the Constitution of the United
States and the Constitution of the Philippines, and are in violation of Articles of War 25
and 38 and of other provisions of the laws of the United States and of the Philippines.

(d) The respondent was granted to authority by the Commander in Chief, United States
Army Forces, Western Pacific, to appoint a military commission and /or to try the
petitioner in the Philippine Islands, and the Commission is, therefore, without
jurisdiction to try this case.

(e) The United, States, not having given notice of the impending trial to the protecting
power of Japan as made mandatory by the Geneva Convention of July 27, 1929, relative
to the treatment of prisoners of war, cannot properly and illegally try the petitioner on
the charge.
Page 7 of 24
3. RULES OF INTERNATIONAL LAW

In the Rules of Land Warfare, paragraph 133 (Exhibit Q), it is provided that "at the
opening of a judicial proceeding directed against a prisoner of war the detaining power
shall advise the representative of the protecting power thereof as soon as possible, and
always before the date set for the opening of the trial," and "at all events, at least three
weeks before the opening of the trial."

Article VIII of the Convention respecting the laws and customs of war on land, agreed in
The Hague on July 29, 1899, provides: "Prisoners of war shall be subject to the laws,
regulations, and orders in force in the army of the State into whose hands they have
fallen.

Section 59 of General Orders No. 100, dated April 24, 1863, containing instructions for
the government of armies of the United States in the field provides: "A prisoner of war
remains answerable for his crimes committed against captor's army or people, committed
before he was captured, and for which he has not been punished by his own authorities."

Secretary of State Daniel Webster, in a communication addressed to Mr. Thompson,

Minister to Mexico, on April 5, 1842, said: "The law of the war forbids the wounding,
killing, impressment into the troops of the country or the enslaving or otherwise
maltreating of prisoners of war, unless they have been guilty of some grave crime; and
from the obligation of this law no civilized state can discharged itself."

4. IN ANCIENT GREECE AND ROME

Many of the basic ideas which prevail today in the customs and usages of nations and
became part of the international law emerged from the human mind centuries before the
Christian Era. Such is the idea that prisoners of war are entitled to humane treatment,
that treasons of war should be discountenanced, and that belligerents must abstain from
causing harm to non-combatants.

On his return to Peloponnesus in 427 B. C., Alcibiades touched at Mayonnesus and

there slew most of the captives taken on his voyage. According to Thucydides, the
Samian exiles remonstrated with him for putting to the death prisoners who have not
been in open hostilities against him.

The same historian narrates that the year before, the Mytileneans of Lesbos revolted from
Athens, but they were obliged to capitulate in the following year to Paches, who
dispatched to Athens over a thousand prisoners. Their disposal provoked discussion in
the Athenian assembly. At the instigation of Cleon, the demagogue and the former
opponent of Pericles, an order was issued to slaughter not only the men who arrived in
Athens, but the entire made population of Mytilene that was of military age, and to
enslave the women and children. The execution of the order was delayed, and another
assembly was called. There an amendment of Theodotus was carried, and the previous
order countermanded.

The roman treatment of prisoners was less rigorous than the Greek. As stated by
Virgilius, "the Roman policy from the first was, on the one hand, debellare super bos, to

Page 8 of 24
subdue the proud and arrogant peoples and, on the other, parcellare subiectes, to spare
those who have submitted."

"Dionisius states that a rule existed in Rome as early as the time of Romulus, which
prohibited the putting to death or enslaving on men captured in the conquered cities,
and also the devastation of their territories; it provided, on the contrary, for the sending
of inhabitants, either to take possession by lot of the some part of the country, for
making the conquered cities Roman colonies, and even for conceding to them some of the
privileges Roman citizenship." (Philipps on the International Law and Custom of Ancient
Greece and Rome, Vol. II, p. 254.)

In 407 B.C. the Spartan commander Callicraditas took the town of Methymna by storm.
In spite of the persuasion of his allies, according to Xenophon, he refused to the sell the
Athenian garrison and Methymnaean citizens as slaves, declaring that so long as he
exercises the command no Greek should ever be reduced to slavery. Grote in his History
of Greece could not refrain from praising this gesture of the Macedonian admiral by
saying: "No one who has familiarized himself with the details of Greecian warfare can feel
the full grandeur and sublimity of this proceeding . . . It is not merely that the prisoners
were spared and set free . . . It is that this particular act of generosity was performed in
the name and for the recommendation of Pan-Hellenic brotherhood and Pan-Hellenic
independence for the foreigner . . . It is, lastly, that the step was taken in resistance to
the formal requisition on the part of his allies." (History of Greece, Vol. VI p. 387.)

Philip, the Macedonian King, liberated Athenian prisoners without ransom after the
taking of Olynthus in 348 B.C. and ten years later after the Battle of Chaeronee, he
dismissed the prisoners with all their baggage.

Xenophon quotes Agesileus reminding his soldiers that "prisoners were meant to be kept,
and not criminals to be punished." And Pausanias narrates that when Epaminondas, the
greatest Theban general, had gathered together, he nominally assigned to each of the
men he captured there a different nationality, and set them all free, and there are cases
where captives were dismissed on parole to have chance of finding ransomers.

Among the Greeks much was done to humanize warfare, and to remove from it the
atrocities which prevailed amongst the most of the nations antiquity. The Oracle of Delfi
refused to listen to the Milesians as they had not duly expiated the excesses committed
in their civil wars, though it responded to all, others, even to barbarians, who consulted
it. "C'etait comme l'excommunication du paganisme", comments Leurent (Vol. II, p. 135).

Poets, philosophers, artist, and men of intellectual distinction in general, even though
they became invested with enemy character on the outbreak of war, were honored and
respected. In 335 B.C. Alexander the Great destroyed Thebes, but he left Pindar's house
uninjured and honored the poet's descendants. In ancient Hellas was already known the
practice of neutralizing cities and protecting them from the ravages of war. Temples,
priest, and embassies were considered inviolable. The right sanctuary was universally
recognized. Mercy was shown to suppliant and helpless captives. Safe-conducts were
granted and respected. Burial of dead was permitted, and graves were unmolested. It was
considered wrong to cut off or poison the enemy's water supply, or to make use of
poisonous weapons. Treacherous strategems of whatever description were condemned as
being contrary to civilized warfare. Poets and philosophers, orators and historians
Page 9 of 24
proclaimed humane doctrines. Plato constructed his ideal republic on the basis of what
he conceived to be perfect justice. Aristotle condemned the principle of retaliation as
being antagonistic to true justice. Euripides speaks of excesses in war not only as acts of
intrinsic wickedness and transgression against universal law, but, indeed, as a suicidal
folly on the part of the offender. In one of his dramas he makes Poseidon declare: "But
foolish is the mortal who lays waste cities, temple, and tombs, the sanctuaries of the
dead; for having consigned them to solitude, he is the one himself to perish afterwards."

The mild and clement nature shown by Caesar to many belligerent peoples was
recognized even by his political enemy Cicero to whom he wrote: You are not mistaken
about me . . . . Nothing is far from my nature than cruelty . . . . I am told that some
prisoners I set free seize the first opportunity to take up arms against me; nevertheless, I
shall not renounce my policy."

The Roman conduct Roman conduct far transcended in its civilized and humane
character that of the German leader Arminius, who is reported by Tacitus to have burned
to death and otherwise barbarously slain the centurions and tribunes of the Varian
legions, and nailed the skulls to trees. The sanction of Roman jurisprudence and the
submission to the fundamental principles of justice proved effective.

Livy narrates that in 393 B.C. a certain school master of Falerii, who was in charge of the
sons of the principal citizens of the town, took the opportunity to lead them to the Roman
camp and threw them into the power of the enemy. The roman general Camillus,
indignant at this treason, ordered the boys to drive their master back to the town, and
flog him all the way. There were, he pointed, laws of war as well as of peace, and the
Romans had learn to put them into practice not less justly than bravely — "sunt et belli,
sicut pacis, iura; iusteque, ea, non, minus, quam fortiter, didicimus gerere."

When Adgantestrius made an offer to the Romans Senate to poison Arminius, according
to Tacitus, he was at once informed that it was not by secret treachery but openly by
arms that the Romans proceeded against their enemies. The same historian mentioned
the fact that the Romans generals rejected the scheme, suggested by the King's
physician, of poisoning Pyrrhus (280 B.C.) and even delivered up the traitor, Pyrrhus, in
return for the Roman generosity, allowed his prisoners to go to Rome on parole in order
to celebrate the Saturnalia; after which, they, faithfully returned.

5. UNQUENCHABLE THIRSTINESS OF PERFECTION. — PETITIONER ENTITLED TO

LEGAL GUARANTEES

Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable

natural urge for improvement, by the unquechable thirstiness of perfection in all orders
of life, humanity has been struggling during the last two dozen centuries to develop an
international law which could answer more and more faithfully the demands of right and
justice as expressed in principles which, weakly enunciated at first in the rudimentary
juristic sense of peoples of antiquity, by the inherent power of their universal appeal to
human conscience, at last, were accepted, recognized, and consecrated by all the civilized
nations of the world.

Under these principles, petitioner General Tomoyuki Yamashita is entitled to be accorded

all the guarantees, protections, and defenses that all prisoners should have according to
Page 10 of 24
the customs and usages, convention and treaties, judicial decisions and executive
pronouncements, and generally accepted opinions of thinkers, legal philosophers and
other expounders of just rules and principles of international law. The seriousness or
unfathomable gravity of a charges against him, the unthinkable magnitude of the
wholesale murders, rapes, and destructions for which he is called to answer, the beastly
massacres and horrors by which he was thrown from the pedestal of military glory as the
"Tiger of Malaya" into the bottom of perversity of a human monster, must not be taken
into consideration, must all be forgotten, in order that true justice may be administered
in this case.

6. WAR CRIMINALS

P align="justify">"There is very little limitation on what a victorious nation can do with a

vanquished State at the close of a war. One shudders to think what Germany and Japan
would do if they were the victors! But the common law of nations probably requires a fair
trial of offenders against war law as a prerequisite to punishment for alleged offenses;
and that Geneva Convention so prescribed in the case of prisoners of war. But in the
final analysis a decent respect for the opinion of mankind and the judgment of history is,
in effect, a victorious belligerent's main limitation on its treatment of the surrendered at
the close of a war; and this is self-imposed. The United Nations are solemnly committed
to the vindication and the rule of law which has been ruthlessly destroyed by the Nazis
and Japanese." (Sheldon Glueck, War Criminals, p. 77.).

"Formalized vengeance can bring only ephemeral satisfaction, with every probability of
ultimate regret; but vindication of law through legal process may contribute substantially
to the re-establishment of order and decency in international relations." (Report of the
Subcommittee on the Trial and Punishment of War Crimes, 37 Am. J. Int. L. [1943], 663,
666.)

"Centuries of civilization stretched between the summary slaying of the defeated in a war,
and the employment of familiar process and protections of justice according to law to air
the extent and nature of individual guilt . . . and in the civilized administration of justice,
even the most loathsome criminal caught redhanded must be given his day in court and
an opportunity to interpose such defenses as he may have." (Sheldon Glueck, Id., p. 78.)

7. ALLIED PRONOUNCEMENTS

According to a number of official pronouncements by United Nations' statesmen, the vast

majority of offenders will be tried in the domestic criminal or military tribunals of the
injured nations. Thus on August 21, 1942, President Roosevelt, in condemning the
crimes committed against the civil population in occupied lands, solemnly announced
that "the time will come when the criminals will have stand in courts of law in the very
countries which they are now oppressing, and to answer for their acts."

On September 8, 1942, Mr. Churchill promised that "those who are guilty of the Nazi
crimes will have to stand up before tribunals in every land where the atrocities have been
committed."

The Moscow Declaration of November 1, 1943, sternly warned that: "at the time of
granting of any armistice to any government which may set up in Germany, those
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German officers or men and members of the Nazi party, who have been responsible for or
have taken a part (in the various) atrocities, massacres and executions will be sent back
to the countries in which their abominable deeds according to the laws of these liberated
countries and of the free governments which will be erected therein," and that "the Allied
Powers will pursue them to the utmost ends of the earth and will deliver them to the
accusers in order that justice may be done."

The American members of commission on responsibilities appointed at the close of World

War I, had strenuously opposed the trial of German war criminals in an international
high tribunal on the grounds that it was unprecedented and that there existed no
international statute or convention making violations of the laws and customs of warfare
international statute or convention making violations of the laws and customs of warfare
international crimes defining such offenses more specifically than the definitions to be
found in the prohibitions of the unwritten or written law of nations affixing a specific
punishment to each crime, and giving jurisdiction to a world court.

But Doctor Glueck is of opinion that "If the Germans were to try an American soldier for
violating German statutes implementing the laws and custom of warfare in a newly
established type of military tribunal, the accused would not be heard to complain that he
had been set up Provided the international tribunal affords as adequate a trial as the
accused would have had in the court of any injured belligerent he has no valid ground for
complaint."(P. 116.).

"One of the arguments — he continues — advanced by the American participants on the

commission on responsibility at the close of World War I, against the establishment of an
international criminal tribunal was that it was unprecedented. The atrocities committed
by Axis powers led by Germany, even by comparison with their behavior in World War I,
are unprecedented. Can history show a better age than our own to initiate a series of
much-needed precedents? Few symbols of this new era which heralds the neighborly
cooperation of civilized people in the vindication of the laws of civilized nation would be
more impressive than an international criminal court, in which the plaintiff would be the
world community. . . . The international criminal court would be a more vivid symbol of
the reign of justice of an international plane than even the permanent court at The
Hague has been. In domestic polity, the administration of criminal justice of the
strongest pillar of government. The doing of an international plane under international
auspices is even more important. It is indispensable to the survival, in the intercourse of
nations, of the very traditions of law and justice. The besmirching of the prestige of
international law is not the least of the evils perpetrated by the Axis power led by Nazi
Germany. The peerless and efficient administration of justice in the case of Axis war
criminals is today indispensable as a token to the peoples of the world, a sign that crimes
committed by one country's subject against the people of another member of the family of
nations will be relentlessly punished even though they run into huge numbers, were
committed by men in uniform, and are instigated by a Fuehrer endowed by himself and
his intoxicated followers with the attributes of a demigod." (Page 178.)

"Adequate law for use by an international court now exist; and its enforcement by such a
tribunal would violate no fundamental tenets of civilized nations. The law for an
international tribunal can be drawn from the rich reserviors of common and conventional
law of nations and the principles, doctrines and standards of criminal law that constitute
the common denominator of all civilized penal codes.
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"The punishment to be applied by domestic military and civil courts depend upon local
law and practice. Those to be imposed by the international tribunal could be based either
upon the punishments permitted by the laws and customs or warfare or upon those
provided for crimes of similar nature and gravity by the law of the accusing State, taking
into account, also, where necessary individual instances, the law of the defendants
States." (Page 181.)

8. NO SURPRISES TO PETITIONER

Petitioner in this case cannot allege ignorance of the fact that the criminal acts alleged in
the specified charges against him are punishable by law, not only in all civilized nations,
but in his own country.

Since January 1, 1882, the Japanese Government had been enforcing a Criminal Code
based on the Code of Napoleon of 1811, prepared by the French jurist M. Boissonade,
said criminal code having been superseded by a new one on October 1, 1908.

Under the last, arson may be punished with death (article 108); rape is heavily punished
(articles 176, 177 and 178); and murder or homicide may be punished with death or
penal servitude for life (article 109). These offenses and many others, punished by our
Penal Code, are known to the Japanese as crimes, which in Japanese is tsumi.

From the Lauterpacht edition (1944) of Oppenheim's International Law, Vol. II, pp. 450-
458, we quote:

SEC. 251. In contradistinction to hostile acts of soldiers by which the latter do not
lose their privilege of being treated as lawful members of armed forces, war crimes
are such hostile or other acts of soldiers or other individuals as may be punished
by the enemy on capture of the offenders. They include acts contrary to
International Law perpetrated in violation of the law of the criminal's own State,
such as killing or plunder for satisfying private lust and gain, as well as criminal
acts contrary to the laws of war committed by order and on behalf of the enemy
State. To that extent the notion of war crimes is based on the view that States and
their organs are subject to criminal responsibility under International Law.

SEC. 253. The fact that a rule of warfare has been violated in pursuance of an
order of the belligerent Government or of an individual belligerent commander does
not deprive the act in question of its character as a war crime; neither does it, in
principle, confer upon the perpetrator immunity from punishment by the injured
belligerent. A different view has occasionally been adopted in military manuals and
by writers, but it is difficult to regard it as expressing a sound legal principle.
Undoubtedly, a Court confronted with the plea of superior orders adduced in
justification of a war crime is bound to take into consideration the fact that
obedience to military orders, not obviously unlawful, is the duty of every member of
the armed forces and that the latter cannot, in conditions of war discipline, be
expected to weigh scrupulously the legal merits of the order received; that rules of
warfare are often controversial; and that an act otherwise amounting to a war
crime may have been executed in obedience to orders conceived as a measure of
reprisals. Such circumstances are probably in themselves sufficient to divest the
act of the stigma of a crime. Also, the political authorities of the belligerent will
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frequently incline to take into consideration the danger of reprisals against their
own nation which are likely to follow as a measure of retaliation for punishment of
war crime durante bello. However, subject to these qualifications, the question is
governed by the major principles that members of the armed forces are bound to
obey lawful orders only and that they cannot therefore escape liability if, in
obedience to a command, they commit acts both violate unchallenged rules of
warfare and outrage the general sentiment of humanity. To limit liability to the
person responsible for the order may frequently amount, in practice, to
concentrating responsibility on the head of the State whose accountability, from
the point of view of both international and constitutional law, is controversial.

SEC. 257. All war crimes may be punished with death, but belligerents may, of
course, inflict a more lenient punishment, or commute a sentence of death into a
more lenient penalty. If this be done and imprisonment take the place of capital
punishment, the question arises whether persons so imprisoned must be released
at the end of the war, although their term of imprisonment has not yet expired.
Some answer this question in the affirmative, maintaining that it could never be
lawful to inflict a penalty extending beyond the duration of war. But is believed
that the question has to be answered in the negative. If a belligerent has a right to
pronounce a sentence of a capital punishment, it is obvious that he may select
more lenient penalty and carry it out even beyond the duration of the war. It would
in no wise be in interest of humanity to deny this right, for otherwise belligerents
would be tempted always to pronounce and carry out a sentence of capital
punishment in the interest of self-preservation.

SEC. 257a. The right of belligerent to punish, during the war, such war criminals
are fall into his hands is a well-recognized principle of International Law. It is a
right of which he may effectively avail himself after he has occupied all or part of
enemy territory, and is thus in the position to seize war criminals who happen to
be there. He may, as a condition of the armistice, impose upon the authorities of
the defeated State the duty to hand over persons charged with having committed
war crimes, regardless of whether such persons are present in the territory actually
occupied by him or in the territory which, at the successful end of hostilities, he is
the position to occupy. For in both cases the accused are, in effect, in his power.
And although normally the Treaty of Peace brings to an end the right to prosecute
war criminals, no rule of International Law prevents the victorious belligerent from
imposing upon the defeated State the duly, as one of the provisions of the armistice
or the Peace Treaty, to surrender for trial persons accused of war crimes. In this,
as in other matters, the will of the victor is the law of the Treaty. It is not to be
expected that he will concede to the defeated State the corresponding right to
punish any war criminals of the victorious belligerent. The resulting inequality is
the unavoidable concomitant of the existing imperfections of international
organization and of the institution of war itself. But the victorious belligerent may
achieve a substantial approximation to justice by making full provision for a fair
trial of the surrender enemy nationals, and by offering to try before his tribunals
such members of his own armed forces are accused of war crimes. Such conduct
may go a long way towards reducing substantially the inequality of treatment as
between the victor and the vanquished.

Page 14 of 24
The permissible acts of warfare are, by the authority of long and common usage, strictly
limited. The treaties entered into between members of the family of nation are but
specific definitions and reinforcements of the general common law nations, the
"unwritten" rules of warfare, which for centuries have limited the method and manner of
conducting wars. The common law of nations, by which all states are and must be
bound, dictates that warfare shall be carried on only in accordance with basic
considerations of humanity and chivalry.

These matters are of course well known to the German and Japanese warlords and
statement, as well as to their henchmen. They will also believe the brutal
pronouncements of German military philosophy in such cynical handbooks for the
guidance of officers as the Kriegsbrauch im Lambkrege in which, although Germany had
to observe the provisions of the Hague Convention regulating warfare, their human
tenets of international law are referred to as expressed generally "sentimentalism and
flabby emotionalism " and are declared to be "in fundamental contradiction with the
nature of war and its objects"; and in which the German officer is sternly warned to
"guard himself against exaggerated humanitarian ideas."

From Doctor Glueck's book we quote:

If there was a domain to which Mr. Justice Holmes' illuminating dictum about a
page of history being worth a volume of logic is applicable, it is that concern the
war criminal's problem (P. 12.) The law of nations has a long way to go before it
can claim to be coherent and fixed system. Its relevant tenets were develop under
the presupposition the members of the community of nations are governed by self-
imposed restraints in accordance with international law; but the emergence of
states with a national policy of deliberate lawlessness and with their invasion of
'total war in the service of a program of world enslavement, compels a realistic
modification of inadequate doctrines and principles of the law (P.13). Nobody who
has made a thorough study of the status of the branch of law of nations involved
can adhere to the view that it is anywhere near as well developed or subject to the
same techniques of "rigorous legal logic" as the more sophisticated branches of
private law. (P14). On September 18, 1942, Churchill assured the House of
Commons that "those who are guilty of the nazi crimes will have to stand up before
tribunals in very land where their atrocities have been committed, in order that an
indelible warning men given to future ages and that successive generations of men
may say, "so perish all who do the like again."

On January 25, 1919, the preliminary peace conference of World War No. I set upon a
commission of fifteen to inquire into and report upon violations of international law
chargeable to Germany and her allies. This commission recommended the setting up of a
high tribunals which was to apply "the principles of the law of nation as the result from
the usages established among civilized peoples, from the laws of humanity and from the
dictates of public conscience." Upon a finding of guilty, the court could sentence to such
punishment as could be imposed foe the offense in question "by any court in any country
represented on the tribunal or in the country of the convicted persons." The
recommendation was not adopted. They were opposed by American and Japanese
members. The Japanese members raised the basic question, among others, "whether
international law recognizes a penal law as applicable to those who are guilty." And it
seemed to them "important to consider the consequences which would be created in the
Page 15 of 24
history of international law the prosecution for breaches of the or customs of war enemy
states before a tribunal constituted by the opposite party," an argument rejected at the
treaty.

In the Treaty of Versailles there were inserted the punitive articles 228, 229 and 230. By
the article 288 the German Government recognized "the right of the allied and associated
powers to bring before the military tribunals persons accused of having committed acts
in violation of the laws to "punishments laid down by law." Article 299 provided for the
trial of accused in military tribunals of the power against whose the nationals the alleged
crimes were committed and the specified that "in every case the accused will be entitled
to name his own counsel."

9. SOME CONCLUSIONS

From all the foregoing, with regards to the petition for a writ of habeas corpus, we
conclude:

(1) That petitioner Yamashita, if he is responsible for the acts imputed to him in the
charges filed before the Military Commission can properly and justly be prosecuted and
punished for them.

(2) That the fact that he has the Commander in Chief of a belligerent army does not
exempt him from criminal liability either for violations of international law or for the
commission of crimes defined and punishable under the laws of the country where
committed.

(3) That his rights and privileges as a prisoners of war, under the Geneva Convention, are
not incompatible with nor are violated by his prosecution for the international and
domestic crimes committed by him.

(4) That under the principles of natural law, all persons guilty of such crimes are
amenable to be arraigned before a court of the justice and, after a fair trial, if found
guilty, should bear the full weight of the law.

(5) That petitioner Yamashita can be prosecuted before the Philippine civil courts in the
like manner as a common criminal and the punished under the provisions of the
Philippine Penal Code.

(6) That the military Commission set up to try him possesses a jurisdiction which is
concurrent with that of the Philippine civil courts, and the choice of the competent
tribunal where he should be tried, which a mere procedural technically, is left to the wise
discretion of the officials in charge of the prosecution.

(7) That in violation of the law of nations, the offended party is the people of the whole
world, and the case against petitioner could be properly entitled as
Humanity versus Tomoyuki Yamashita," and no person in position to prosecute the
violators can honesty shirk the responsibility of relentlessly prosecuting them, lest he be
branded with the stigma of complicity.

Page 16 of 24
(8) That the absence of a codified International Penal Code or of a criminal law adopted
by the comity of nations with specific penalties for specific and well-defined international
crimes, is not a bar to the prosecution of war criminals, as all civilized nations have
provided in their laws the necessary punishment for war crimes which, for their very
nature, cease to be lawful acts of war, and become ordinary crimes with the
extraordinary character of having been committed in connection with war, which should
be considered as an aggravating circumstance.

10. THE SUPREME COURT'S JURISDICTION

Whether this Court has jurisdiction or not to take cognizance of this case is the first
question raised herein.

We believe that no doubt should be entertained that it has.

The petition pertains to a judicial case, to a case wherein justice is to be administered. It

is a criminal case initiated for the prosecution and punishment of Tomoyuki Yamashita,
Commander Chief of the Japanese Army in the Philippines, alleged as the greatest war
criminal in the Pacific and in the Whole eastern hemisphere.

The case calls for the exercise of the judicial power, one of the three government powers,
firstly defined by Aristotle and upon which Montesquieu elaborated later in his "Spirit of
the Laws."

The judicial power shall be vested in one Supreme Court and in such inferior
courts as may be established by law. (Art. VIII, sec. 1, Constitution of the
Philippines.)

By this provision, the judicial power is primarily vested in the Supreme Court, which
exclusively exercise the whole power. But it also authorizes the enactment of laws
sharing the power to inferior courts, which include all other courts and tribunals of all
description, whether ordinary or extraordinary, whether civil or criminal, whether
industrial or military, whether designated as "courts" or simply as "commissions."

The Congress shall the power to define, prescribe, and apportion the jurisdiction of
the various courts, but may not deprive the Supreme Court of its original
jurisdiction over cases affecting ambassadors, other public ministers, and consuls,
nor of its jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error, as the law or the law of the rules of court may
provide, final judgments and decrees of inferior courts in —

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance,
or executive order or regulation is in question.

(2) All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.

(3) All cases in which the jurisdiction in which of any trial court is in issue.

(4) All criminal cases in which the penalty imposed is death or life imprisonment.
Page 17 of 24
 (5) All cases in which an error or question of law in involved.

(Art. VIII, sec. 2, Constitution of the Philippines.)

From the foregoing it is evident that this Supreme Court has jurisdiction, which
Congress is powerless to abolish, to review, revise, reverse, modify, or affirm any and all
actuations of judicial nature of the party respondent and the Military Commission before
whom petitioner Yamashita tried is for his life. In facts, this Supreme Court's jurisdiction
extends, not only to courts and judicial institutions, but to all persons, and agencies
which form part of the whole machinery of the administration of the justice, in so far as
is necessary to the administration of the justice.

We have jurisdiction over the person of respondent Lt. Gen. Wilhelm D. Styer, not as to
the discharge of his military functions and duties, but in regards to his official acts in
connection with the administration of justice in the criminal case against Tomoyuki
Yamashita, and that jurisdiction became effective since November 13, 1945, his refusal
to sign receipt for the summons and the refusal of the subordinate officers in his officers
in his office to accept said and the summoning of said military commission.

No one questions our jurisdiction over the person of petitioner, he having voluntarily
submitted himself to it by his petition.

With respect to the military commission trying him, under the questions raised in the
petition, it is a proper party respondent and the petitioner should have included it as
among the party respondents. But petitioner's omission is just a technical error of no
vital consequence, because under the judicial rules, we can order the inclusion and the
summoning of said military commission.

The amici curiae want to us to be cautious and slow in exercising jurisdiction in this

case, in view of the possibility that our orders might be disregarded by the military
officers concerned. The fear entertained by the amici curiae might find some ground in
the attitude of respondent General Styer, when the latter refused to sign receipt for the
summons or to receive the papers thereof.

The same warning has been made in a case decided by this Supreme Court several weeks
ago. In answer to the warning, we can do no better than to repeat what we said therein.

It has been argued with energy by those who oppose our issuing the order for the
release of the petitioners, that if we decide to issue it, the United States Army
might refuse to set them at liberty, with the result that the order of release will
become a mere scrap of paper and the Supreme Court of the Philippines will be
placed in the unenviable position of utter ridicule. We have to answer in the most
definite way that we can not agree with such a narrow point of view.

But suppose the most unexpected should happen, that there might be members of
the United States Armed Forces who will be blind enough to ignore the order of this
Supreme Court, to make a mockery of the administration of justice, shall that
unthinkable hypothesis deter us from doing our duty? Our answer is a simple. No.
No one and nothing in the whole world, neither the all-powerful army which
humbled Germany and forced the surrender of the "invincible" Japanese Army, nor
Page 18 of 24
 weapons more dreadful than the atomic bomb, the menace of an imminent
catastrophe, shall be powerful enough to make us flinch from complying with our
plain duty as Justices of the Supreme Court. We must do our duty as our
conscience dictates, without fear nor favor. It is our duty to make reason and right
supreme regardless of consequences. Law and justice might suffer setbacks,
endure eclipses, but at the end they shall reign with all the splendors of the real
majesty. (Raquiza vs. Bradford, G.R. No. L-44, pp. 76, 88, ante, dissenting.)

We recognized no one to be above the law. Mere military might cannot change and nullify
the course of justice. In the long run, everybody must have to bow and prostrate himself
before the supreme majesty of the law.

11. HABEAS CORPUS

In praying for a writ of habeas corpus, petitioner wants us to order that he be returned
from the status of an accused war criminal to that of a prisoner of war.

He is not seeking release from confinement.

We are of opinion that the petition for a a writ of habeas corpus must be denied. The
purpose of said writ is to restore liberty to a person who is being deprived of it without
due process of law. Such is not the case of petitioner. He does not complain of any illegal
detention or deprivation of personal freedom.

He is deprived of his liberty because he is, according to his own allegation, a prisoners of
war. Whether or not he should be accused as a war criminal, is not a proper question to
be raised in habeas corpus proceeding.

The fact that petitioner is an accused war criminal does not change his status as a war
prisoner. He remains to be so, whether he is prosecuted as a war prisoner because he
was placed and regarded as war criminal or not.

Not having lost his status as a war prisoners because he was placed and regarded as a
war criminal, there is no reason for ordering his reversion to a status which he did not
cease to retain since his surrender or capture on September 2, 1945.

For these reasons we voted for the denial of the writ of habeas corpus.

12. JURISDICTION OF THE MILITARY COMMISSION

We are opinion that the Military Commission conducting the trial of petitioner has
jurisdiction to try him for the crimes alleged in the 123 items in the specified charges
filed against him.

From the very allegations and exhibits of petitioner it appears that said Military
Commission was created and organized by orders of General Douglas MacArthur,
Commandeer in Chief of the United States Army Forces in Western Pacific.

We are of opinion that said Commander in Chief has authority to convene said Military
Commission.
Page 19 of 24
Petitioner contends that "there being no marital law, active hostilities in the Philippine
Islands at the time of the appointment of the commission, there was no authority to
appoint the commission, and the commission in without jurisdiction.

We do not agree with the contention. Neither martial law, nor the existence of Military
Government, nor the waging of active hostilities is a prerequisite for exercising the power
of appointing a Military Commission.

In the absence of pre-established tribunals clothed with authority to try war criminals,
Military Commission may be established for said purpose, and unless organized by the
Chief Executive himself they may be organized by the military Commander in Chief,
representing said Chief Executive.

The American Representatives (Lansing and Scott) in the Allied commission of 15

organized after the first World War, although opposed, with the Japanese
Representatives, the creation of an international criminal court, which became abortive,
were of opinion that war criminals may be tried by Military Commission of the offended
countries.

13. COLLECTIVE RESPONSIBILITY

Although we maintain that the Military Commission here in question has jurisdiction to
try the case for war crimes against petitioner Yamashita, in the regulations governing the
trial of war criminals, Exhibit F, there are several features which should not be left
unchallenged. Section 4-b, under the title of "Jurisdiction" of Exhibit F, provides: "Any
military or naval unit or any official or unofficial group or organization whether or not
still in existence, may be charged with criminal acts or complicity therein and tried by a
Military Commission."

This provision, undoubtedly, advances the principle of collective responsibility in

contradistinction to the principle of individual criminal responsibility.

Under the principle of individualized criminal responsibility, no person may be convicted

of any offense without due process of law and without proving in said process in which
he should also enjoy the guarantee of equal protection of the laws, that the he is
personally guilty of the offense.

Under the principle of collective criminal responsibility, any member of any social group
or organization may be convicted without any hearing if, in a process where he did not
have his day in court, the social group or any other member thereof is found guilty of an
offense.

During the Japanese regime, when a member of a family was found by the military
police, with or without ground, as responsible for an alleged offense or being a member of
a guerrilla unit, the remaining members of his family were also made to suffer.

When a town or barrio was suspected of harboring guerrilleros, the Japanese would

punish the whole town or barrio by mowing down all the inhabitants, or burning all the
houses, or, at least, subjecting all the male inhabitants thereof to brutal zonings. The
ruins of Manila are graphic illustrations of how the principle worked.
Page 20 of 24
It is unnecessary to elaborate more to show the grave iniquities to which the principle of
collective criminal responsibility leads.

We are of opinion that said principle violates the constitutional guarantee of due process
of law and therefore, we should have issued a writ of prohibition enjoining the Military
Commission from exercising the unconstitutional jurisdiction granted in section 4-b of
Exhibit F.

14. EVIDENCE

Section 16 (1), under the title of "Evidence," provides what may be admitted as evidence
as follows: "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."

The following may also be admitted as evidence according to section 16 (3): "Affidavits
depositions, or other statements taken by an officer detailed for that purpose by military
authority."

We are of opinion that the admission of documents as evidence, "without proof of the
signature or of the issuance of the document," is a denial of the due process of law
constitutionally guaranteed to all persons before he could be deprived of his life, liberty,
or property. The authenticity or genuiness of a document is an essential element in order
that it may acquire the nature of an evidence. Proof of signature of the issuance of the
document is essential to show its genuiness.

The admission of affidavits "or other statements taken by an officer detailed for that
purpose by military authority" is clear violation of the constitutional guarantee that in all
criminal prosecution that accused shall enjoy the right" to meet the witness face to face."
(Art. III, sec. 1 [17], Constitution of the Philippines.) The Military Commission accepted as
evidence against accused Yamashita the affidavits of Naokata Utsunomiya (Exhibits L
and M), denying said Yamashita the constitutional right "to meet face to face affiant
Naokata Utsunomiya.

According to section 16 (4) of the regulations (Exhibit F); "Any diary, letter or other
document appearing to the to the commission to contain information relating to the
charge," may also be admitted as evidence. This provision denies also to the accused the
constitutional guarantee of meeting a witness face and, therefore, of cross-examining
him.

We are of opinion that the admission of evidence above-mentioned must be prohibited,

and that a writ of prohibition issued by the Court is a proper remedy.

15. HEARSAY

The regulations (Exhibit F) authorizes also the admission of hearsay as evidence.

Section 16-d of said regulation provides: "If the accused is charged with an offense
involving concerted criminal action upon the part of a military of naval unit, or any group
or organization, evidence which has been given previously at a trial of any member of
Page 21 of 24
that unit, group or organization, relative to that concerted offense, may be received
as prima facie evidence that the accused likewise is guilty of that offense."

In section 16-e, the objectionable feature of a hearsay evidence is aggravated by the

adherence to the principles of collective criminal responsibility. It provides: "The findings
and judgment of a commission in any trial of sa unit, group or organization with respect
to the criminal character, purpose or activities thereof shall given full faith and credit in
any subsequent trial by that or any other commission of an individual person charged
with criminal responsibility through membership in such unit, group or organization
convicted by the commission, the burden of the proof shall shift to the accused to
establish any mitigating circumstances relating to his membership or participation
therein."

We are opinion, too, that the Military Commission should be prohibited to follow the
unjust procedures delineated in the above-quoted provisions, the objectionable character
of which was explicitly admitted even by the amicus curiae who appeared to argue in
this case in opposition to the granting of remedies sought by petitioner.

16. FUNDAMENTAL RIGHTS GUARANTEED TO EVERYBODY

No matter who the petitioner is, we are of opinion that he is entitled to all the safeguard
of a fair trial.

The fundamental rights freedoms guaranteed in the Charter of the United Nations are
guaranteed to all human beings, without exception.

In his annual proclamation setting November 22, 1945, as Thanksgiving Day, President
Truman, among other things, said: "Liberty knows no race, creed or class in our country
or in the world. In unity we found our first weapon, for without it, both here and abroad,
we were doomed. None have known this better than our very gallant dead, none better
than their comrade Franklin Delano Roosevelt. Our Thanksgiving has the humility of our
deep mourning for them, our vast gratitude for them.

"Triumph over the enemy has not dispelled very difficulty. Many vital and far-reaching
decisions await us as we strive for a just and enduring peace. We will not fail if we
preserve, in our own land and throughout the world, the same devotion to the essential
freedoms and rights of mankind which sustained us throughout the war and brought us
final victory."

And Prime Minister Attlee, in the face of the potential destructiveness of the atom bomb,
said before the English Parliament: "It is well that we should make up our minds that in
a war on the scale to that which we have just emerged every weapon will be used. We
may confidently expect the fullest destruction of great cities, death of millions and the
setting back of civilization to an unimaginable extent.

"No system of safeguards which could be devised will of itself — I emphasized of itself —
provide an effective guarantee against production of automatic weapons by a nation or
nations bent on aggression.

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"With the terrible march of the science of destruction, every nation will realize more
urgently the overwhelming need to maintain the rule of the law among nations and to
banish the scourage of war from the earth.

"We have in prospect the meeting of United Nations Organization and there is an
instrument which, if all are resolved to use it, could establish the rule of the law and
prevent war — I resolved."

In the eternal struggle between the principles of right and wrong, there no choice if
humanity must survive. Lincoln said: "That is the real issue that will continue in this
country when these poor tongues of Judge Douglas and myself shall be silent. It is the
eternal struggle between these two principles, right and wrong, throughout the world.
They are the two principles that have stood face to face from the beginning of time."

When we voted for the granting of the writ of prohibition, we did it out of consistency, as
the vibrant words of Jefferson must no cease ringing ours in ours ears when he said:
"What a stupendous, what an incomprehensible machine is man! who can endure toil,
famine, stripes, imprisonment, and death itself, in vindication of his own liberty, and, the
next moment be deaf to all those motives whose power supported him through his trial,
and inflict on his fellowmen a bandage, one our of which is fraught with more misery
than ages of that which he rose in rebellion to oppose."

17. NEEDED SERVICE TO THE MORAL AND CULTURAL PURPOSES OF HUMANITY

If petitioner is tried and convicted under a process in which some of the recognized
essential guarantees for a fair trial are violated, it would produce a result opposite that
expected by those who are following up the trials of all war criminals; the arousing of a
deep-rooted universal conviction that law must be supreme and that justice should be
equally administered to each and very member of humanity.

The peoples of all nations who are keenly watching the prosecution of Yamashita should
be convicted, by conclusive evidence, that said prosecution is not a mere parody of the
administration of justice, devised to disguise the primitive impulses of vengeance and
retaliation, the instinctive urge to crush at all costs, no matter what the means, hated
fallen enemy.

The prosecution, trial, and conviction of Yamashita must impress all the peoples of the
world that the principle of law is paramount, and supersedes and wipes out all other
considerations in dealing with war or common criminals. Otherwise, their faith in the
supremacy of law as the invulnerable bulwark of all fundamental human rights will be
shaken, and the moral position of the victorious United Nations, the ethical value of the
grandiose pronouncements of their leaders, and the profound significance of the lofty
ideals for which millions of their soldiers have fought and died, will be weakened and
diminished to such an extent as to make barren all the tremendous sacrifices made by so
many countries and so many peoples in the last global hecatomb.

It was Ihering who, in his " LAW AS A MEANS TO AN END ," said that: "There is no
human life which exist merely for itself, every one is at the same time for the same of the
world: every man in his place, however limited it may be, is a collaborator in the cultural
purposes of humanity . . . . I cannot imagine a human life so poor, so devoid of content,
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so narrow, so miserable, that it is not of some good to some other life; even such a life
has not seldom borne the world the richest fruit." (Page 60.)

So even the shameful exploits in the Philippines with which Yamashita ingloriously
crowned his military career, at its peak when he conquered Malaya and Singapore, and
descended from the pedestal of the greatest Nippon military hero in all her history to the
moral abyss of that abominable monstrous figure, the greatest war criminal in Asia and
in the Pacific, cannot put render some service to the cultural purposes of humanity if, by
his due trial in accordance with the elemental rules in the criminal procedure, the sense
of law and justice is further developed in the conscience of the present and future
generations.

18. OUR VOTE

From all foregoing, when the resolution to dispose of this case was put to a vote, we
concurred in the denial of the petition for a writ of habeas corpus, and we voted for the
granting of the writ of prohibition in order that the objectionable features in the trial
before the Military Commission may be eliminated, so that petitioner Yamashita may be
given the full justice due to all human beings.

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