Race and War Crimes: The 1945 War Crimes Trial of ... 12/Carleton...Race and War Crimes: The 1945...

Race and War Crimes: The 1945 War Crimes Trial of General TomoyukiYamashita

Ann Marie Prévost

Human Rights Quarterly, Vol. 14, No. 3. (Aug., 1992), pp. 303-338.

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HUMAN RIGHTS QUARTERLY

Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita

Ann Marie Prbvost

TABLE OF CONTENTS

I. INTRODUCTION 11. BACKGROUND

A. The Yellow Peril and the Second World War B. Yamashita: "The Tiger of Malaya" C. Commander of the Philippines

1. The Battle of Leyte Gulf 2. Consolidation of Command 3. Manila: 11 February to 3 March 1945 4. Japanese Surrender

Ill. THETRIAL A. International War Crimes Tribunals B. MacArthur Speeds the Process C. The Trial Opens D. Lack of Time E. Admission of Hearsay F. Command Responsibility

IV. THE SUPREME COURT: IN RE YAMASHITA A. War, Race, and the Supreme Court B. The Decision C. The Dissenting Opinions

1. The Fifth Amendment 2. Command Responsibility

D. Racism and the Subsequent Use of Command Responsibility

V. THE TRIAL OF ADMIRAL SOEMU TOYODA A. The Missing Directive

Human Rights Quarterly 14 (1992) 303-338 o 1992 by The johns Hopkins University Press

304 HUMAN RIGHTS QUARTERLY Vol. 14

B. The Toyoda Trial Begins C. The Argument of the Defense D. The Judgment of the Yokohama Tribunal E. Assessment of the Yokohama Judgment

VI. CONCLUSION

I. INTRODUCTION

We are still too close to the event to determine its effect for good or bad, but what is done i s done and we can only hope that history will vindicate the judgment of the moment.

-Yamashita defense counsel George Guy, 1950'

The case of General Tomoyuki Yamashita is one of the most renowned of the war crimes trials of World War 11. The trial of the Japanese commander of the Philippines was and continues to be a case surrounded in controversy. It is noted particularly for the precedential charge applied to the general, known today as command responsibility. Under this charge, the American military tribunal was able to convict Yamashita without any showing of culpability on his part.2 The tribunal's theory was that Yamashita was the commander and, solely by virtue of his position, was responsible for all acts committed by any of the troops under his command. On 7 December 1945 General Yamashita was convicted on this charge and sentenced to be hanged.3

The trial of General Yamashita was strictly American. It began on 29 October 1945, in Manila, shortly after the surrender of Japan and prior to the commencement of the international tribunals of Nuremberg and Tokyo. The United States and the Supreme Commander for the Allied Powers, Far East, Douglas MacArthur, had a particular interest in the Philippines. Indeed, the Philippines, which had been conquered by the United States at the turn of the century, was still an American possession in the fall of 1 945.4 During the Pacific War, the Philippines and the US soldiers fighting there had suffered tremendously at the hands of the Japanese. The atrocities committed by naval forces in Manila, for which Yamashita was charged with command responsibility, were some of the most brutal of the war. Not surprisingly, the

1. George Guy, The Defense o f Yamashita, 4 Wyo. L.J. 153, 180 (1 950). 2. In re Yamashita, 327 U.S. 1, 39 (1946) (Murphy, J., dissenting). 3. J. Gordon Feldhaus, The Trial of Yamashita, S.D. B.J., Oct. 1946, at 191. 4. It was not until 4 July 1946 that the United States granted the Philippines its independence.

(In 1898 the United States fought a war with Spain in order to take over Spain's remaining colonial holdings, including the Philippines. For the next two years US forces conducted a bloody campaign against Filipino independence leader Emilio Aguinaldo in order to secure this new holding. Among the leaders of the American forces was Manila's military governor, General Arthur MacArthur, the father of Douglas MacArthur.)

1992 War Crimes Trial of General Yamashita 305

mood at the opening of trial-so soon after the war-was one of revenge. From the outset, General Douglas MacArthur the Supreme Commander for the Allied Powers, Far East, and his military tribunal were blindly determined to convict Yamashita. Indeed the procedures put into place by the tribunal to try Yamashita were so onerous that even the press reported them to be outside the norms of "Anglo-Saxon ju~ t ice . "~

The Yamashita defense team, which was appointed by the tribunal, consisted of six army lawyers, including Col. Harry E. Clarke, Lt. Col. James G. Feldhaus, Lt. Col. Walter C. Hendrix, Maj. George F. Guy, Capt. A. Frank Reel, and Capt. Milton Sandberg. When they first learned of their appoint- ments to defend an alleged Japanese war criminal, defense counsel were, to say the least, an tag on is ti^."^ Early on however, they became convinced of their client's innocence. They also became convinced of the illegality of the charge against Yamashita and the procedures used to condemn him. Shortly into the trial, therefore, the six army officers made a "career decision." They determined to risk the wrath of their Supreme Commander and take the case outside the power of the military, directly to the Supreme Court of the United States.' They hoped that in Washington they would find justice despite the atmosphere of hatred and vengeance generated by the war.

In Washington they found instead a Court that for reasons of political expedience would abdicate its power to the will of the military as it had done in previous war-related cases.8 The decision against Yamashita was rendered on 4 February 1946.9 As a result of condoning this command responsibility theory, the United States hanged a man who had in fact done everything he could to prevent atrocities.1°

The Yamashita case has often been characterized as a case of "victor's justicef'-a tragic but not unexpected result of the postwar mentality. The Yamashita case, however, represents more than this. Yamashita was not convicted merely because he was a commander; he was convicted because he was a Japanese commander. The influence of racial prejudice in Ya- mashita's trial and the controversial Supreme Court decision which followed has never been adequately addressed. Yet it is a fact that the Yamashita version of command responsibility theory was not used against German war criminals at Nuremberg, nor was it applied to US officers during the Vietnam War. The courts have applied it only to alleged Japanese war criminals. Yamashita was convicted of this charge, and it was used at the international

5 . Yamashita: Too Busy, Newsweek, 10 Dec. 1945, at 26. 6 . Feldhaus, supra note 3, at 186. 7 . Guy, supra note 1 , at 157. 8 . See generally David P. Currie, The Constitution in the Supreme Court: The Second World

War, 1941-1946, 37 Cath. U . L . Rev. 1 (1987). 9 . Yamashita, 327 U.S. at 1 .

10. See infra notes 51 and 61 and accompanying text.


tribunal in Tokyo. Indeed, racism and the Pacific War is a subject which only recently has been examined." This study will endeavor to show the influence of racial prejudice on the outcome of the Yamashita case-an influence which sets a dangerous precedent for future war crimes trials.

When the government secures such a conviction as a result of racial prejudice, it is not unlikely that the conviction wi l l later be found to be a terrible yet irretrievable mistake. In this respect, the Yamashita case ends with just such an unsettling twist. This author discovered, as a result of an interview with Yamashita defense counsel A. Frank Reel, that just two years after Yamashita's conviction Admiral Soemu Toyoda, Japan's highest ranking naval officer, was charged with the identical war crimes.12 Toyoda's own testimony at trial reveals that Yamashita was not in command of the forces that committed the atrocities for which he was hanged.13 It was Toyoda who put the perpetrators of those crimes in a position to commit them. Interest- ingly, the trial of Admiral Toyoda has virtually disappeared from recorded history.14 To date the United States has never acknowledged its mistake.

II. BACKGROUND

A. The Yellow Peril and the Second World War

American prejudice against the Japanese and Asians in general-evidenced, for example, by the once-common fear of the "Yellow Perilu-has had a long and shameful history. Such racism first appeared in the United States during the nineteenth century when Chinese immigrants came to the west coast to work on the transcontinental railroad. By 1882 Congress had passed the Chinese Exclusion Act in order to restrict further Chinese immigration.15

At the turn of the century Japanese immigrants met with this same race hatred. Initially the racial tension was relegated to the west coast where the majority of Japanese had immigrated. However, as a result of the Russo- Japanese War of 1905 the Yellow Peril fear and anti-Japanese hysteria spread throughout the country; for the first time in modern history, an Asian nation had defeated a European nation.lb

11. See generally John W. Dower, War Without Mercy: Race & Power in the Pacific War (1986). According to Professor Dower, apart from the genocide of the Jews in Europe racism remains one of the great neglected subjects of World War II. Id. at 4.

12. Interview by author with A. Frank Reel, Yamashita defense counsel, Tarrytown, NY, 7 Aug. 1988 [hereinafter Reel Interview].

13. U.S. v. Toyoda, LS Doc. No. 101-H, at 4 (International Military Tribunal for the Far East, Yokohama, decided 6 Sept. 1949) (transcript can be found at the National Archives, Military Field Branch, Suitland Maryland).

14. See infra note 164 and accompanying text. 15. J. Dower, supra note 11, at 10. 16. Jacobus Tenbroek et al., Prejudice, War and the Constitution 62 (1954).


In 1922 the Supreme Court decision Ozawa v. United States held that Japanese were not eligible for naturalization as US citizens because they were not of the caucasian race." In 1924 Congress prohibited all persons ineligible for citizenship from immigrating; the Immigration Act of 1924 thus entirely eliminated Japanese immigration to the United States.18

The Yellow Peril fear was dormant for several years until it was reac- tivated by the bombing of Pearl Harbor on 7 December 1941. During the war, race-based propaganda against the Japanese became overwhelming. Professor John W. Dower, who has written extensively on the subject of racism in the Pacific War, has noted that Americans persisted in the notion that the Japanese were "subhuman, inhuman, lesser-than-human" or, con- versely, "s~perhuman."'~ As a practice, the US and the Allies used images of apes to describe the J a p a n e ~ e . ~ ~

In addition, Professor Dower has pointed out that this component of racial prejudice was not present in the European sphere of the war. Through- out the war the Allies maintained a skewed vision toward their European and Asian foes. Despite the brutality of the Germans, a generally "enlightened attitude" was assumed by the Allies, who took care to distinguish "good" and "bad" germ an^.^' Further, Professor Dower has written that the Allies tended to describe German atrocities as "Nazi" crimes rather than as be- havior "rooted in German culture or personality." In contrast, Asian brutality was presented simply as "Japanese." There was no Japanese counterpart to the "good" German,22 hence the war-time saying, "The only good Jap i s a dead J ~ P . " ~ ~

6. Yamashita: "The Tiger of Malaya"

Throughout the war, Yamashita was a victim of this racist vision. As early as 1942 the Allied notion of Japanese as subhuman and ape-like was applied

17. 260 U.S. 178, 198 (1 922). In 1790 the first federal naturalization act limited US citizenship to "free white persons." In 1870 the law was expanded to include "aliens of African nativity and . . . persons of African descent." In Ozawa the Court unanimously construed a similar 1906 statute to exclude Japanese. Id. at 192-93; see also Peter J. Schuck, The Transformation o f lmmigration Law, 84 Colum. L. Rev. 1 (1 984).

18. Ch. 190, 5 11, 43 Stat. 153, 159-60. This "national origins" act was essentially a quota system, based on the ethnic representation in the 1890 census. Professor Irons explains that, as such, it favored immigrants from northern Europe and restricted the immigration of Arabs, Italians, and Polish and Russian Jews, whose presence it was feared might "change the make-up of American society." The Japanese were not merely restricted by the Act, however; they were entirely excluded. Peter Irons, Justice at War 12 (1983).

19. Dower, supra note 1 1, at 9. 20. Id. 21. Id. at 34. 22. Id. 23. Id. at 79.


to the General. As an illustration, in February of that year Yamashita captured the British fortification at Singap~re.*~ The British had considered Singapore invulnerable to attack, yet General Yamashita rapidly negotiated his troops through the dense jungle and offered surrender terms as he reached the gates of the city. Not knowing that Yamashita's forces were numerically inferior, Sir Arthur Percival accepted Yamashita's terms.

Instead of acknowledging that they had been outdone by the brilliant strategy of Japan's great field general, the British portrayed their defeat as having been accomplished by savage beasts. In cartoon form, the British magazine Punch depicted Yamashita's forces as apes making their way to Singapore swinging from tree to tree.25

At the very time Yamashita was securing victory in Singapore, his German counterpart, Field Marshall Erwin Rommel, was destroying the British in North Africa. Far from being hated, however, Rommel was becoming a legendary figure to the Allies. Indeed, it was precisely because of his successes against the British that Rommel was considered by them to be "one of the greatest military leaders in history." He was hailed as a "pure genius who made the Afrika Corps ~nbea tab le . "~~ This analysis of the two great Axis field generals underscores Professor Dower's theory that the Allied vision of their enemies was racially skewed. Rommel, who became known as the "Desert Fox" for his accomplishments on the battlefield, was considered a romantic figure. Yamashita, who became known as the "Tiger of Malaya" for his battlefield successes, was considered a savage.

Yamashita, however, was quite different than he was depicted by the Allies. After considerable investigation into his character and background, Yamashita defense counsel George Guy found that, in fact, "Yamashita had never been a 'political' General and that he had earned his high rank by sheer effi~iency."~' Guy found also that Yamashita had a "reputation for fairness and for being a firm and strong disciplinarian and that he had never been part of the extremist

On the contrary, Yamashita had actually been opposed to the war with the Allies. Defense counsel Feldhaus recounted that in 1940, after an in-

24. Feldhaus, supra note 3, at 181, 183. In theopinion of Yamashitacounsel James G. Feldhaus, Yamashita's defeat of the British in Singapore had a bearing on the fact that he was brought up on charges. Telephone interview by author with James G . Feldhaus, 29 Aug. 1988 [hereinafter Feldhaus Interview]. As explained by Paul G. Lauren, the State De- partment's Far Eastern Division predicted that the fall of Singapore would lower the prestige of the white race in the colonies of Britain and the United States, thereby threatening the future of their empires. Power and Prejudice: The Politics and Diplomacy o f Racial Discrimination 132 (1 988).

25. Dower, supra note 11, at 84. 26. Samuel W. Mitcham, Triumphant Fox 30-31 (1 984). 27. Guy, supra note 1, at 161. 28. Id.


spection tour in Europe, Yamashita reported to Tojo that, compared to the European armies, the Japanese army "left much to be desired." Yamashita also recommended that the "Chinese War be brought to an immediate close" and suggested that peaceful relations with Great Britain and America be "maintained at all costs."29 Yamashita's analysis put him in great disfavor with Tojo30 and the military clique in power in J a ~ a n . ~ ' By September 1941 Yamashita found himself in command of an "unimportant post" in the Jap- anese puppet state of M a n c h ~ k u o . ~ ~

It was not until later that year, when war with the United States was imminent, that he was given command of the 25th Japanese Army in the Malayan peninsula. It was at this point that Yamashita captured Singapore. Defense counsel Reel recounted that overnight Yamashita became a "national hero." Prime Minister Tojo, however, feared Yamashita's new political influence and refused to allow him to come to Tokyo to make his report to the E m p e r ~ r . ~ ~ Instead, Tojo ordered Yamashita once again to an obscure command in Manchukuo. It was not until some two years later, when Tojo's government fell on 18 July 1944, that Yamashita was given command in the phi lip pine^.^^

C. Commander of the Philippines: 9 October 1944 to 9 September 1945

The war had unquestionably turned against Japan by the time General Ya- mashita took command of the Japanese army in the Philippines on 9 October 1944. From the battle of Midway in June of 1942 until the fall of Saipan in July of 1944, the Japanese had suffered tremendous losses at the hands of the Allies. It became clear to both the US and Japan that the Philippines would be the site of the final major battle of the Pacific War. By the summer of 1944 General MacArthur and Admiral Nimitz had decided to combine the Southwest and the Central Pacific forces in order to meet and destroy

29. Feldhaus, supra note 3, at 182. 30. Id. Hideki Tojo served as Japan's Prime Minister and War Minister at the time of Pearl

Harbor until the fall of Saipan in July 1944. Id. at 183. 31. Feldhaus, supra note 3, at 182. Under the standard of the "Greater East Asia Co-prosperity

Sphere" the militarist clique in Japan endeavored to bring all Asian countries under Japanese control. They believed that Germany would win the war in Europe and thus aligned themselves with the Axis powers. When the Japanese advanced into French Indochina, however, they incensed the United States, which placed an embargo on japan's oil supply. It was at this point that the Japanese attacked the fleet at Pearl Harbor, hoping to coerce the United States into lifting the embargo. John Whitney Hall, japan from Prehistory to Modern Times 344-47 (1970); see also Mikiso Hane, Modern Japan: A Historical Survey 273-308 (1986).

32. Feldhaus, supra note 3, at 182. 33. A. Frank Reel, The Case o f General Yamashita 62 (1 949). 34. Id. at 63. The Tojo government resigned after the Japanese defeat at Saipan.


the remaining Japanese fleet at Leyte. In response, Admiral Soemu Toyoda and the Imperial General Headquarters devised the Sho (Victory) Plan, under which the Japanese hoped to gather the remaining elements of their naval and air power and stop the Allied drive toward Japan.35

In preparation, Toyoda, the highest ranking Naval officer in Tokyo and the man in charge of the Philippine defense, took his staff to the main island of Luzon from 7-9 October 1944. Because the Sho Plan was to be a naval and air mission, Toyoda's short visit to Manila did not include a meeting with the newly arrived General Yamashita. In fact, Toyoda in his later trial testimony stated that he met with his army counterpart, Count Terauchi, only very briefly and merely as a "courtesy." His objective was to survey only the naval and air situation at the front.36

Air support, of course, would be crucial for the success of the Sho Plan. Yet Toyoda found the Japanese air situation to be desperate. He decided, therefore, to makea strategic change in the Naval Air Command and replaced Admiral Kimpei Teraoka with Vice Admiral Takajiro O n i ~ h i . ~ ' This was a crucial decision, for it was Admiral Onishi who had originated the idea of using suicide planes, or kamikaze, to destroy the American fleet. Until this point Onishi's radical plan for air defense had fallen on deaf ears.38 Now, however, he was selected to head the naval air force for the Sho Plan, precisely to implement the use of the kamikaze. The selection of Onishi by Toyoda underscores what was later confirmed, that it was Toyoda and not Yamashita who wished to fight to the end.39

The breakdown of the army line of command and their naval counter- parts at the time of Yamashita's arrival was as follows:

ARMY NAVY

UMEZU ... . . . . . . . . . . . . . . . . . . . . . . . . . . . .TOYODA Chief, Army General Staff, Chief, Navy General Staff,

Tokyo, Headquarters Tokyo, Headquarters

TERAUCHI4O . . . . . . . . . . . . . . . . . . . . . . . . ..TOYODA Commander-in-Chief, Commander-in-Chief,

Southern Army Combined Fleet

35. Hane, supra note 31, at 326-27. 36. Toyoda transcript at 4. 37. Edwin P. Hoyt, The Kamikaze 23 (1983). 38. Id. at 11. In the summer of 1944, after the fall of Saipan, Admiral Onishi flew to Japan

to try to convince the Emperor of the value of the Kamikaze in the war effort. Id. 39. Toyoda transcript at 4. 40. Field Marshall Count Hisaichi Terauchi headed land operations in Malaya, Sumatra, Java,

Borneo, Burma, Thailand, Indochina, and the Philippines. See Hoyt, supra note 37, at 70.

1992 War Crimes Trial of General Yamashita 31 1

YAMASHITA . . . . . . . . . . . . . . . . . . . . . . . . ..OKOCHI 14th Area Army Southwest Area Fleet

YOKOYAMA . . . . . . . . . . . . . . . . . . . . . . . . ..IWABUCHI4' Shimbu Group Manila Naval Defense

While the naval and air forces were preparingfor the Sho Plan, Yamashita began the task of evaluating the condition of his own army command. As he later confided to defense counsel Reel, the situation on Luzon was grim. He stated that his supplies were poor and scattered throughout the island; his soldiers were poorly trained and of low morale. Under these conditions, rather than develop an offensive strategy, Yamashita made the critical decision to devise an orderly plan of defense for L ~ z o n . ~ *

I . The Battle of Leyte Gulf

On 20 October 1944, only ten days after Yamashita's arrival, the United States began the reconquest of the Philippines with the Battle of Leyte Gulf. By now Japanese Imperial Headquarters had convinced themselves of the impossible believing that the Sho Plan would bring a victory to Japan.

As a consequence of this conviction Japanese Imperial Headquarters on October 22 informed Yamashita that he should join with the Japanese navy and air force fighting the Americans at Leyte. Unconvinced, in contrast to his superiors in Tokyo, of a Japanese victory at Leyte, Yamashita unsuccessfully protested the change in plans to Count Terauchi. Yamashita's plan for the orderly defense of the Philippines ended and he began to cooperate with the reinforcement of the troops on the island of L e ~ t e . ~ ~

Yamashita, of course, had been correct. Despite the successes of the kamikaze, the Battle of Leyte Gulf was a disaster for the J a p a n e ~ e . ~ ~ The Japanese Navy had been all but destroyed by the American forces. In addition, nearly half of the forces Yamashita had sent to aid in the campaign were killed, even before they arrived at L ~ z o n . ~ ~ In total, the battle lasted sixty-seven days. By December General MacArthur announced a victory at

41. Of this list of seven officers, four were brought up on charges regarding their command responsibility in the destruction of Manila. They were Yamashita, Umezu, Yokoyama, and Toyoda. All except Yamashita were acquitted of the charge. It was Yamashita's unhappy fate that his trial was the first. lwabuchi was not so charged, as he had died in the fighting in Manila. Toyoda transcript at 11 28-29.

42. Reel, supra note 33, at 18. 43. Id. at 19. 44. Roger Pineau, Spirit of Divine Wind, U.S. Naval Inst. Proc., Nov. 1958, at 24. The first

kamikaze planes were sent into battle on 25 October. Id. 45. Reel, supra note 33, at 19.

31 2 HUMAN RIGHTS QUARTERLY Vol. 14

Leyte and began preparation for the liberation of Luzon and Manila.46 The Japanese High Command was completely confused by the failure

of the Sho Plan. Heartened by the success of Japan's first use of the kamikaze, however, Headquarters convinced themselves that success might still be possible. Commenting on this, Toshiyuki Yokoi, former rear Admiral in the lmperial Navy has written that "lmperial General Headquarters was so fully convinced of a possible victory, that it issued an outrageous and an un- precedented order to the effect that ' a l l armed forces should resort to suicide attack^."'^' In addition, Admiral Yokoi emphasized that, as with every military order, "it was issued in the name of the Emperor and was therefore not subject to ~ r i t i c i s m . " ~ ~

Meanwhile, lmperial Headquarters turned its attention to Okinawa, where the next American invasion would begin. Count Terauchi had already moved his Southern Army Headquarters to Saigon in early November. Ad- miral Onishi was now ordered to move his operations to Formosa. With no Japanese aircraft remaining in Manila, the remnant of Onishi's kamikaze troops were assigned to Admiral Iwabuch i's naval command.49 Underscoring the orders from General Headquarters, Admiral Onishi told his men as he left Manila that they did not need airplanes to continue being kamikaze, and encouraged them to "fight to the very last."50

The Philippine Islands were now completely written off to the American forces. Nevertheless, lmperial Headquarters urged Yamashita to "seize any opportunity for carrying out decisive engagement^."^' Yamashita, however, made no plans for a decisive battle. Instead, he devised a plan at odds with that of lmperial Headquarters. In his trial testimony Yamashita stated:

In view of the Leyte operations I realized that a decisive battle was impossible. Therefore, I decided on a delaying action to divert American forces in Luzon so as to keep them from attacking Japan as long as possible. In my experience with the Leyte operations I realized that the American forces were exceedingly superior to ours and also the fire power of the ground forces was superior and very mobile. Therefore, I knew I could not conduct warfare on flat land. So I decided to employ a delaying action in the mountains."

In mid-December Yamashita began to implement his defensive plan. At that time he moved his headquarters from Manila, 125 miles north, to the

46. Hoyt, supra note 39, at 159. 47. Toshiyuki Yokoi, Kamikazes and the Okinawa Campaign, U.S. Naval Inst. Proc., May

1954, at 505. 48. Id. 49. Hoyt, supra note 37, at 162. 50. Id. 51. Richard L. Lael, The Yamashita Precedent: War Crimes and Command Responsibility 13

( 7 982). 52. Reel, supra note 33, at 21-22.


mountains of Baguio, and ordered his troops to evacuate Manila. Yamashita's 1600 army troops left the city. However, 20,000 naval troops remained.53

2. Consolidation of Command

The essential element in the Yamashita trial was the determination that Yamashita was commander of all the Japanese forces in the Philippines in March of 1945 when the atrocities by the naval forces in Manila took place. Initially, however, Yamashita had been given command of only half of the troops in the Philippines and by December of 1944, the Japanese army and navy in the Philippines were still operating independently of each other. At that time Yamashita had been given no control over either the naval forces or the army air force.54

Indeed, when Yamashita ordered the evacuation of Manila in December, both the naval forces and army air forces were vehemently opposed. As an example, Major Kyoji Tominaga, commander of the 4th Air Army, refused to evacuate his troops from Manila until early January when Imperial Head- quarters finally put them under Yamashita's direct command.55

The transfer of the naval forces to Yamashita's command, however, was never so clearly stated. In his later trial testimony Admiral Toyoda was to explain that on 6 January 1944 Yamashita and Okochi complied with orders from Imperial Headquarters which transferred command of naval personnel in Manila to the army. Toyoda further explained, however, that Yamashita's Shimbu Army Group, under the command of General Yokoyama, was technically given a "limited command function" over Iwabuchi's Manila Defense Force "in regard to land operations" only.56 It was left to naval commander Admiral lwabuchi to make the distinction between "naval business" and "land operation^."^'

In addition, Admiral Toyoda stated that Okochi was given the discretion by lmperial Headquarters that, if he should later find it to be a "disadvantage" to have the lwabuchi unit under Yamashita, he (Okochi) could "take it In essence, the chain of command from Yamashita to lwabuchi was from the beginning tentative at best. Most importantly, in view of the Toyoda testimony it is clear that at all times the navy retained veto power over the chain of command.

53. Id. at 22-23. 54. Id. at 18. 55. Hoyt, supra note 37, at 1 68. 56. Toyoda transcript at 1 11 7. 57. Id. According to Reel, Admiral lwabuchi made the most of this distinction in his decision

not to evacuate the city. lwabuchi reasoned that he could not evacuate until he had completed the naval mission of destroying the strategic value of the city by mining the harbor and destroying all naval installations. Reel, supra, note 33, at 23-24.

58. Toyoda transcript at 6.


This resistance which Yamashita met when he called for the evacuation of Manila was due in part to the desperation all Japanese forces felt in the last months of the war. The volatile situation in Manila was only heightened by the presence of the kamikaze troops which remained behind and were now under Iwabuchi's command. Nonetheless, prosecutors would later argue before the military tribunal that Yamashita had technically gained command of the naval forces in Manila and therefore should be held responsible.

3. Manila: I 1 February to 3 March 7945

On 9 January 1945, US forces landed on the main island of Luzon. Due to the incessant bombardment by the Americans, Yamashita's communication with the naval forces in Manila was lost almost immediately. By 4 February US troops reached the ancient city of Manila. Refusing to surrender, the Japanese naval forces turned the city into an orgy of killing, engaging the American troops in heavy street-by-street and house-to-house fightings9 In the blood lust of defeat, they tortured and murdered nearly 100,000 of the city's 700,000 civilian inhabitant^.^^ The battle for Manila was indeed one of the most savage of the Pacific War.

Defense counsel Reel recounted that Yamashita knew nothing of the battle in Manila for ten days because his communications had been cut. When he finally heard, Yamashita immediately directed General Yokoyama to go to Manila once again and order lwabuchi to withdraw from the city. By then, however, the US forces had completely encircled the city. Con- sequently, Yamashita ordered Yokoyama to make a counter attack to help lwabuchi withdraw. It was too late. Yokoyama's attempted rescue mission had failed. Inside the gates of the city the Japanese naval forces fought on until the end as they had been told by their naval commanders. By 3 March all of the Japanese troops in the city had been killed.61

4. Japanese Surrender

On Luzon, the fighting continued from Yamashita's defensive encamp- ment in the mountains at Baguio until 15 August, when the Japanese surrendered to the Allied forces. On 3 September General Yamashita surrendered his troops to the US Army at L ~ z o n . ~ *

59. Reel, supra note 33, at 23. 60. Dower, supra note 11, at 44-45. 61. Reel, supra note 33, at 23. 62. In re Yamashita, 327 U.S. 1, 5 (1946).

1992 War Crimes Trial of General Yamashita

I l l . THE TRIAL

A. International War Crimes Tribunals

Even before the war ended the United States and her Allies had made preparations to try war criminals. On 8 August 1945 the Allies signed an agreement governing the trial and punishment of war crimes. This agreement, however, was designed to govern only war crimes committed in the European theatre.63 Prosecution under the war crimes agreement was to take place at Nuremberg, with the trials set to begin on 20 November 1945. The Tokyo Charter was established later by General MacArthur, the Supreme Com- mander for the Allied Powers in Japan (SCAP), acting under orders from the Joint Chiefs of Staff.64 As at Nuremberg, these trials would be designed to try political leaders for "crimes against peace." The Charter trials, to be held in Tokyo and Yokohama, were not set to begin until 3 May 1946.65

B. MacArthur Speeds the Process

MacArthur, however, did not want to wait until May to try war crimes in the Pacific. Therefore, in a conference in September 1945 MacArthur established the "Rules and Regulations Governing Trial of War Criminals" to try traditional war crimes.66 Major General R.J. Marshall, MacArthurfs deputy chief of staff, announced that the first trial would be that of General Yamashita and that the charges against Yamashita "should indicate that he failed to exercise proper control over his troops and that he permitted the sacking of Manila."67 Marshall further stated "that there was no precedent here for charging a Field Commander with . . . negligence . . . in controlling his

On 25 September the United States served Yamashita with charges and imprisoned him as a war criminal.69 The charge served against him read as follows:

63. Agreement: Prosecution and Punishment of Major War Criminals of the European Axis, 8 Aug. 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279.

64. Richard H. Minear, Victor's Justice: The Tokyo War Crimes Trial 20 (1971). 65. The American Chief Prosecutor at Nuremberg, Brigadier General Telford Taylor, later

stated, "public indifference to the Tokyo trial has been matched by an apparent lack of interest on the part of the sponsoring governments themselves." Arnold C. Brackman, The Other Nuremberg 22 (1 987).

66. Lael, supra note 51, at 60. 67. Id. at 69. 68. Id. 69. In re Yamashita, 327 U.S. 1, 5 (1946).


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 the 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.'O

Lt. General Styer7' appointed five American army generals to the tribunal to hear the case, none of whom were combat officers nor lawyers.72 Although these men were supposed to be members of an independent body, their positions, as subordinates of the Supreme Commander, would create a con- flict of interest as the trial p rogre~sed.~~

C. The Trial Opens: 29 October to 7 December 1945

Defense counsel first met together on 3 October in Manila. Recalling the events of the trial, defense counsel Feldhaus said that although they did have a copy of the charges, "we knew nothing about the prosecution's theory of the case, except that the Japanese army had committed atrocities in the Philippines, and that thechief ofthe War Crimes Branch Headquarters Armed Forces, Pacific, had made statements to the press to the effect that the case was without ~ r e c e d e n t . " ~ ~

The defense team first met Yamashita on 5 October. Feldhaus wrote that he was "quite bitter about having been appointed defense counsel on the case."75 However, these initial feelings gave way in the following weeks to growing "admiration and respect for this Japanese General whom we had first thought to be a savage and a barbarian."76

On 8 October the United States arraigned Yamashita. He pleaded not guilty. At this time the United States finally served a bill of particulars spec- ifying sixty-four items, including a large number of murders, attempted murders, and rapes alleged to have been committed by troops under Yamashita's ~omrnand.~ 'As defense counsel Feldhaus explained, the bill did not allege

70. Id. at 52 n.17. 71. Stver was Commanding General of the United States Army Forces, Western Pacific.

~ imash i ta , 327 U.S. at;. 72. Reel, supra note 33, at 40. 73. See infra notes 81-82 and accompanying text. 74. Feldhaus, supra note 3, at 185. 75. Id. at 186. 76. Id. 77. In re Yamashita, 327 U.S. 1, 57 (Rutledge, I., dissenting)

1992 War Crimes Trial of General Yamashita 31 7

that Yamashita had "ordered, condoned, or actually knew anything about these ~rirnes." '~ Nor did it allege that he had in any manner "sanctioned their comrnis~ion."'~

D. Lack of Time

The prosecution, headed by Major Robert M . Kerr, had been working on its case for some time. Yet the recently constituted defense was given a mere three weeks to prepare for trial. Furthermore, on 29 October, the day the trial began, the prosecution filed a supplemental bill of particulars adding fifty-nine specific charges for a total of 123.80

The defense counsel immediately entered a motion requesting additional time to prepare for the added specifications. Rather than granting this motion, the commission stated that it would consider it at the end of the prosecution's presentation of evidence regarding the first bill of particulars. When that time (November 12) came, however, the commission denied the m ~ t i o n . ~ ' Although the defense counsel was unaware of it, General MacArthur had intervened because he was "disturbed" at reports of a possible continuance "and doubted need of [the] defense for more time." He conveyed this to the "independent" commission via radiogram from Tokyo sometime between 8-1 2 N~vernber.~ '

E. Admission of Hearsay

Defense counsel Guy recounted that, in addition to the lack of time given to defense counsel to prepare its case, rules of evidence were "especially prepared" for the trial. These rules provided a number of "exceptions to the usual safeguards normally afforded accused persons in criminal or military procedures." As an example, the hearsay rule was entirely eliminated.83 The hearsay rule is a basic rule of law which states that a witness cannot testify as to what someone else has told him in order to prove the assertion set forth. Throughout the proceedings, however, the only proof of Yamashita's involvement in the atrocities came in the form of such hearsay evidence.84

Some of the ex parte affidavits and depositions which were presented

78. Feldhaus, supra note 3, at 187. 79. Id. 80. Yarnashita, 327 U.S. at 57-58 (Rutledge, I . , dissenting). 81. Id. at 58-61 (Rutledge, I . , dissenting). 82. Reel, supra note 33, at 85. 83. Guy, supra note 1, at 161-62. 84. Yarnashita, 327 U.S. at 49 (Rutledge, I . , dissenting).

31 8 HUMAN RIGHTS QUARTERLY Vol. 14

to the court even included second- and third-hand hearsay evidence. The commission admitted every statement and "rumor" which might incriminate Yamashita, regardless as to whether the source was identified. The prosecution even put an American propaganda film into evidence.85 None of this would have been admitted under the usual rules of evidence. Indeed, the admission of such evidence resulted in the denial of all opportunity for the defense counsel to explore the probative value of this evidence through cross-examination. As Justice Rutledge would later explain, "the effect could not have been other than highly p r e j ~ d i c i a l . " ~ ~ Newsweek reported the situation thus:

Illts rule of evidence, as interpreted by the bench, permitted almost anything, even the prosecution's introduction of third-hand hearsay evidence-a break with Anglo-Saxon justice that scandalized trial observers.

When it closed its case the prosecution produced hundreds of thousands of Japanese military documents captured in the Philippines. But not one directly implicated Yamashita in the war crimes for which he was held re~ponsible.~'

F. Command Responsibility

From the beginning of the trial both the prosecution and the defense emphasized the issue of command responsibility. The prosecution argued that the atrocities were so numerous, notorious, and widespread that Yamashita "should have known" or "must have known."88 They argued further that if Yamashita did not know of these crimes, it was simply because he took "affirmative action not to know."89 In so arguing, the prosecution ignored the fact that it was the very policy of the US armed forces to disrupt communication, cause confusion, and destroy the enemy; and ignored the fact that Yamashita was in Baguio, cut off from Manila when these atrocities occurred.g0

While the charges alleged that Yamashita had failed in his duty to control his troops, the bill of particulars set forth no acts which amounted to a "permitting" of the crimes in question. Indeed, while the commission heard 286 witnesses during trial, the prosecution was unable to connect Yamashita with even one of the 123 atrocities named in the bill of particular^.^'

As a result, the commission made no suggestion in its finding that Ya- mashita had "personally participated in, was present at the occurrence of,

85. Id. (Rutledge, J., dissenting). 86. Id. (Rutledge, J., dissenting). 87. Yamashita: Too Busy, Newsweek, 10 Dec. 1945, at 26. 88. Lael, supra note 51, at 86. 89. Id. 90. Yarnashita, 327 U.S. at 31-33 (Murphy, J., dissenting). 91. Id. at 50 (Rutledge, I . , dissenting).


or ordered any of the incident^."^^ Indeed, the commission ultimately made no express finding of culpable knowledge.93 Rather it stated only two things: (1) that there had been widespread atrocities and crimes, and (2) that Ya- mashita "failed to provide effective control . . . as was required by the circum~tances."~~In essence, Yamashita was commander of the Japanese forces and therefore was guilty of every crime committed by every soldier assigned to his command.

On 7 December 1945, exactly four years to the day after the bombing of Pearl Harbor, General Yamashita was sentenced to be hanged for a crime which Justice Murphy would assert to be "clearly without precedent in international law and recognized concepts of justice."95 On that day defense counsel Guy recalled that Pat Robinson, of International News Service, took a straw vote of twelve newsmen who had covered the trial. The question asked them was: "On the evidence produced before the Commission, would you hang Yamashita?" The vote of the twelve newsmen was twelve to nothing in the negative.96

IV. THE SUPREME COURT: IN RE YAMASHITA

Given the mood of the commission, the defense counsel was, from the very beginning, aware that it was in a no-win ~i tuat ion.~ ' Therefore, even before trial began one of the six defense counsel, Lt. Colonel Hendrix, was des- ignated to find some way to get the case before the Supreme Court of the Philippines and, ultimately, before the US Supreme Court.98

92. Id. (Rutledge, J., dissenting). 93. Id. (Rutledge, I . , dissenting). 94. Id. at 51 (Rutledge, I., dissenting). 95. Id. at 40 (Murphy, I . , dissenting). 96. Guy, supra note 1, at 171-73; Reel, supra note 35, at 174-75.

After the decision was announced the defense team went to see Yamashita for the last time. At that meeting Yamashita thanked them for their efforts on his behalf. He then presented some remembrances to each member of the team, including his ribbons, his watch, Chinese good-luck coins, and a tea set. He gave his spurs to Major Guy who, like Yamashita, was a cavalry oificer. Id.

Forty years later, in 1985, Gina Guy, the daughter of Major George Guy, visited Yamashita's son in Kamakura. During that visit she returned to the Yamashita iamily the spurs that Yamashita had given to her father. Telephone interview by author with Gina Guy, 29 June 1988.

97. In the words of Newsweek correspondent Robert Shaplen: "In the opinion of probably every correspondent covering the trial, the military commission came into the courtroom the iirst day with the decision in its collective pocket." Reel, supra note 33, at 87.

98. Deiense counsel Guy explained that by law there was no procedure ior a direct appeal irom the decision of a military tribunal to the civilian courts. Under Ex parte Milligan, 71 U.S. (4 Wall.) 2, 132 (1 8661, and Ex parte Quirin, 31 7 U.S. 1 (19421, the only means of judicial escape would be through a writ o i habeas corpus and writ of prohibition. In order to make these remedies available it was essential to show that the military court which tried the petitioner was without jurisdiction. Guy, supra note 1, at 157.

320 H U M A N RIGHTS QUARTERLY Vol. 14

On 23 November 1945, even before Yamashita's trial had ended, his defense counsel argued for a writ of habeas corpus and prohibition before the Philippine Supreme Court. The principal points presented to that court were the same as would shortly be presented to the US Supreme Court. On 27 November the Philippine Supreme Court denied the defense counsel's motion. The Court stated that "for the Filipino courts to interfere with acts of the US Army would be a violation of . . . faith by the Philippine Com- m ~ n w e a l t h . " ~ ~

As soon as the commission announced the guilty verdict the defense counsel wired the clerk of the Supreme Court of the United States requesting a stay of execution on the sentence.loO The defense counsel wanted to be certain that MacArthur would not execute Yamashita before the Supreme Court had reviewed the case.lol On that same day, they sent the Supreme Court a petition for writs of habeas corpus and prohibition. Chief Justice Stone set oral argument for 7 january.lo2 The four grounds on which the appeal was based were as follows:

99. Reel, supra note 33, at 203. In his dissenting opinion Justice Perfecto stated: The peoples of all nations who are keenly watching the prosecution of Yamashita should be convinced by conclusive evidence that said prosecution is not a mere parody of the administration of justice devised todisguise the primitive lmpulses of vengeance and retaliation and of the ~nstinctive urge to crush at all costs no matter by what means a hated fallen enemy. The prosecution, trial and conv~ction of Yamashita must impress all the people of the world that the principle of law is paramount and supercedes and wlpes out all other considerations dealing with war and commanders as rvar criminals. Otherwise, their faith in the supremacy of law as the invulnerable bulwark of all fundamental human rights will be shaken as will be the moral posltion of the victorious United Nations. The ethical value of the grandiose pronouncement of their great leaders and the proiound s~gnificance of the lofty ideals for which millions have died, wi l l be weakened and diminished.

Guy, supra note 1, at 171. 100. Reel, supra note 33, at 175. 101. Feldhaus, supra note 3, at 191. One explanation of MacArthur's desire to execute Ya-

mashita might be attributed to his close relationship with the Philippines and its people. Although it is understandable that he would want to punish the person responsible for the Manila atrocities, his love o i the Filipino people does not adequately explain the haste in which he attempted to do this. Yamashita defense counsel A. Frank Reel and James G. Feldhaus have set iorth a more plausible explanation. It is their suggestion that MacArthur's need for haste rested more in his political ambitions-achieving the presi- dency-than his interest in justice. Indeed, having the iirst war crimes conviction was simply a way o i promoting those ambitions. Feldhaus Interview, supra note 24; Reel Interview, supra note 12. Likewise, Supreme Court Justice Frank Murphy had a close relationship with the Philippines and its people. Murphy served as Governor General o i the Philippines from 1933 until 1936 and was an informal sponsor o i the Filipino independence movement. In contrast to MacArthur, however, Murphy rose above his personal feelings and the politics o i the day. His strong beliei in civil rights caused him to dissent in the Yamashita case. See generally J. Woodiord Howard, Mr. Justice ~Murphy (1 968).

102. Guy, supra note 1, at 174. Reel, Sandberg, and Clarke argued the case, with Hendrix, Guy, and Feldhaus filing a brief ior the petitionerpro hac vice. Solicitor General MacGrath and Assistant Solicitor General Judson argued the case ior the State. In re Yamashita, 327 U.S. 1, 4 (1 946).

1992 321War Crimes Trial of General Yamashita

-the tribunal was not lawfully created, as petitioner could not be tried for violations of war after cessation of hostilities; '03

- the charge failed to state a violation of the laws of war;

-the commission was without authority and jurisdiction, as it deprived petitioner of a fair trial in violation of the due process clause of the Fifth Amendment; and

-the commission was without authority for failure to notify the neutral power representing the interests of Japan.lo4

A. War, Race, and the Supreme Court

As mentioned previously, the Supreme Court was overwhelmed early on by pressures stemming from the Pacific War. In re Yamashita was just one of several war-related cases decided by the Supreme Court under the guidance of Chief Justice Harlan Fiske Stone (1941-1 946).lo5 A number of these earlier wartime cases involved Japanese-American citizens. In these cases the Su- preme Court had been unwil l ing to challenge the decisions of the military. The treatment of the Japanese-Americans in the United States is a forceful example of the racial prejudice of the Pacific War and the "official endorse- ment" it received.lo6

The Court sanctioned military restrictions on Japanese-Americans and resident aliens in such infamous caseslO' as Hirabayashi v. United States,lo8

103. The defense argued that the cessation of hostilities, coupled with the normal operations of the Philippine government in late 1945, voided the right of MacArthur to appoint a military commission. The majority, however, disposed of the first argument in short order holding that the tribunal was valid, as a formal peace treaty had not yet been signed. Yamashita, 327 U.S. at 12. But see Breese Burners, Inc, v. United States, 121 F.Supp. 530 (Ct. CI. 1954) (holding that the term "duration of the war" was not meant to extend beyond the time in which the enemies of the United States formally surrendered).

104. Yamashita, 327 U.S. at 6. 105. See generally Currie, supra note 8. 106. Dower, supra note 1 1, at 5. 107. See David P. Currie, The Constitution in the Supreme Court: The Preferred-Position Debate,

194 1-1946, 37 Cath. U. L. Rev. 39, 70 (1 987). See also Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law 672-73 (1956).

108. 320 U.S. 81 (1943). In Hirabayashi the Court upheld a curfew imposed on Japanese- Americans by the military. The military had been given this power by Executive Order 9066. As his rationale, Chief Justice Stone cited the Army's claims that the "racial at-tachment" to their ancestral homeland made reasonable the suspicion that Japanese- Americans posed a danger of espionage and sabotage. Stone further wrote that "it is not for any court to sit in review of the wisdom of their [the military's] action or substitute its judgment for theirs." Id. at 93, 101-03.


Yasui v. United States,'09 and Korematsu v. United States.'1° The Court relied on an unconditional doctrine of judicial restraint in arriving at these decisions. Chief Justice Stone had formulated this theory soon after President Roosevelt's court-packing plan of 1937 as a way to protect the Court."' In adhering to this principle Stone hoped to gain the confidence of the Presi- dent.l12 One observer has noted that by applying this strict interpretation as a rationalization for the Japanese-American cases the Court carried its idea of judicial restraint to the point of "judicial abdication."l13

In the most infamous of these cases, Korematsu,l14 the Court upheld the internment of 120,000 Japanese-Americans. The Court explicitly stated that under certain circumstances restrictions upon the liberties of certain racial groups would be tolerated in the name of military necessity.lli Despite this acknowledgment, the US government did not place such restrictions on US citizens of German or Italian ancestry.llh In Korematsu "military necessity" was a thin veil for racism."' As a result the Korematsu decision has been

109. 320 U.S. 1 1 5 (1943) (sustaining the convict ion o i Yasui and upholding the curfew o i Japanese-Americans ior the reasons stated in Hirabayashi).

110 . 323 U.S. 21 4 (1944) (uphold inga military orderthat excluded persons oijapaneseancestry i rom the West Coast on the basis o i military necessity).

11 1 . Mason, supra note 107, at 781 . 11 2 . Id. at 560. 1 1 3 . Tenbroek, supra note 16, at 220. Tradit ional ly, in t ime o i war or emergency, the Courts

w i l l exercise great deierence in regard to the decisions of the military and the political branches. Chief Justice Stone, however, had developed his doctrine of judicial restraint even before the war began. W h e n iaced w i th the added pressures of the war the Chiei Justice abandoned any pretense of review at al l , accepting bl indly the assertions and decisions of the government and the military. Neil K. Komesar has stated that, in addit ion to the threat of court-packing and impeachment, there appeared the wart ime threat that the political branches would simply ignore the Court's decisions, thereby revealing the Court's impotence when stripped o i support from the political branches. Neil Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U . Chi . L. Rev. 366, 389, 391 ( 1 984 ) . See also Jules Lobel, Emergency Power and the Decl ine of Liberalism, 98 Yale L.J. 1385 (1989) ; Christopher May, In the Name of War: Judicial Review and the War Powers Since 19 18 (1 989) .

1 14. Justice Black wrote ior the majority, w i th Justices Murphy, Roberts, and Jackson dissenting. 323 U.S. 115 (1943) .

1 15 . Korematsu, 323 U.S. at 21 6 . 1 1 6 . See Justice Jackson's dissent (suggesting that the executive order was based at least in

part on racial prejudice, although Justice Jackson did not explicitly so charge.) Id. at 243 (Jackson, I . , dissenting).

11 7 . O n l y Justice Murphy argued that exclusion based on race was unnecessary. In his dissent he discussed the experience in England where tribunals had separately assessed the loyalty o i over 70,000 German and Austrian aliens and interned only 2,000. Korematsu, 323 U.S.at 242 n.16 (Murphy, J . , dissenting). In addit ion, he presented evidence wh ich showed that pressure ior the mass evacuation had been applied by special interest groups concerned w i t h eliminating commercial competition i rom Japanese- Americans w h o had the "temerity t o undersell wh i te producers." Id. at 239 n.12 (Murphy, J . , dissenting).


highly criticized.l18 Congress has only recently officially denounced the "racial prejudice" which led to the internment.llg

As in the Japanese-American cases, General Yamashita was not deprived of his constitutional rights simply because of the war but also because he was Japanese. In the words of defense counsel George Guy:

By mid-October 119451, i t seemed that all of America . . . believed firmly that a l l lapanese officers were "Samurai fanatics," "Greater East Asia exgonents," ~ m ~ l ; eImperialists, etc., whose hands dripped wlth the blood of helpless women and children.'*"

1 18. Note, Developments in the Law: Race and the Criminal Process: 111, 101 Harv. L. Rev. 1472, 1497 (1 988). See also Peter Irons, justice at War (1 983). Later in his career Justice William 0.Douglas was to state that "I have always regretted that I bowed to my elders and withdrew my opinion in the Korematsu case." Id. at 361-62. In addition, Laurence Tribe, who i s generally critical o i institutional analysis, has stated that Korematsu is an example of "the neiarious impact that war and racism can have on institutional integrity and cultural health." American Constitutional Law 1452 (2d ed. 1988).

1 19. Civil Liberties Act o i 1988, Pub. L. No. 100-383, 102 Stat. 903 (to be codified at 50 U.S.C. app. secs. 1989-1 989d). In 1980 Congress created The Commission on Wartime Relocation and Internment of Civilians. The Commission found that Executive Order 9066 was not justiiied by military necessity. Instead, "the broad historical causes which shaped these decisions were race prejudice, war hysteria and the failure of political leadership." As a result, under the Civil Liberties Act o i 1988 about 60,000 surviving citizens became eligible for a $20,000 benefit and an apology irom the US government.

It is interesting to note that the research done in preparation for this legislation led to the discovery o i documents revealing that the military knew that there was, in fact, no danger from the Japanese community. These documents further proved that the government knowingly withheld this information from the courts when they were considering the critical question o i military necessity. Korematsu v. United States, 584 F. Supp. 1406, 1407 (N.D. Cal. 1984). This new evidence discovered at the National Archives by a researcher, Aiko Herzig-Yashinaga, for the Commission on Wartime Relocation and In- ternment of Civilians, eventually led to the vacation of the judgment against Fred Kore- matsu in 1984. Id.See generally Eric Y. Yamamoto, Korematsu Revisited-Correcting the Injustice of Extraordinary Government Excess and Lax ludicial Review: Time ior a Better Accommodation of National Security Concerns and Civil Liberties, 26 Santa Clara L. Rev. 1 (1 986).

Ironically, while the criminal charges against Korematsu were vacated, the preventive detention holding of the original case remains precedent and has recently been afiirmed by the Supreme Court in United States v. Salerno, 481 U.S. 739 (1987). The Court in Salerno stated, "We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Id. at 748. See generally Note, The Supreme Court, 1986 Term: Leading Cases in Con- stitutional Law, 101 Harv. L. Rev. 1 19 (1 987); Note, United States v. Salerno: "A Loaded Weapon Ready for the Hand", 54 Brooklyn L. Rev. 171 (1 988).

In 1987, under a writ o i coram nobis, the conviction against Gordon Hirabayashi was similarly vacated. Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987).

120. Guy, supra note 1, at 158.


Indeed, from the moment he was arrested, the commission completely disregarded Yamashita's impressive record. No distinction was made between Yamashita and other Japanese officers, even though he had been an outspoken opponent of the aggressive war. In addition, Time referred to Yamashita as the "Beast of Bataan" persistently throughout the trial.12' Ya- mashita, of course, had never been to the Philippines before October of 1944 and indeed had had nothing at all todo with the Bataan Death March.12> As defense counsel Guy concluded, "Yamashita was already convicted . . . even before a shred of evidence had been introduced against him."lL3

B. The DecisionlZ4

The decision in the Yamashita case mirrored the Stone Court's previous war- related decisions. The Court again applied its strict theory of judicial restraint. In its narrow holding the Court stated merely that the Commission had been lawfully constituted and that Yamashita had been properly charged with a violation of the laws of war. Thus, the Court concluded that Yamashita's trial and conviction were lawful.125

To diminish any criticism of the Court in this already controversial case, Chief Justice Stone endeavored to secure a unanimous decision. Several of the justices, however, caused the Chief Justice concern. In particular, Justice Hugo Black, one of the most influential men on the Court, informed the Chief Justice, behind-the-scenes, that he disagreed with Stone's early draft opinion in which Stone had suggested that Yamashita had been tried in accordance with the due process standards of the Fifth Amendment.lL6 While Black believed that the case was not within the Supreme Court's jurisdiction, he did not believe that Yamashita had been tried with due process.12' Con-

121. Feldhaus, supra note 3, at 183. According to Feldhaus the persistence of that fiction by such a widely read magazine considerably hampered the defense. Id.

122. In the spring of 1942, 76,000 American and Filipino troops surrendered on Bataan and Corregidor. More than 10,000 men died on the 7-day march to the POW camp 120 kilometers away. Brackman, supra note 65, at 246.

123. Guy, supra note 1, at 158-59. 124. The majority consisted of Chief Justice Harlan Fiske Stone and Associate Justices Felix

Frankiurter, William 0.Douglas, Stanley Reed, Hugo Black, and Harold Burton, ~v i t h Wiley B. Rutledge and Frank Murphy dissenting. In re Yamashita, 327 U.S. 1 (1946). Justice Jackson did not take part in the decision. At the time he was acting as chief prosecutor at the International War Crimes Tribunal in Nuremberg, Germany.

125. Yamashita, 327 U.S. at 25. 126. Mason, supra note 107, at 666-71. 127. Lael, supra note 51, at 106-07 (quotingirom Justice Black's private papers). Black reasoned

that the Court lacked authority to regulate enemy combatants because the military "has iinal power to establish rules of war and to eniorce them against the enemy." Id. However, this statement is incorrect. Article I, section 8, clause 10 of the US Constitution states that only Congress can deiine and punish oiienses against the laws o i nations. Thus, i i


cerned with a possible defection by Black, Chief Justice Stone dispensed with Yamashita's Fifth Amendment rights in the following paragraph:

For reasons already stated we hold that the commission's rulings on evidence and on the mode of conducting these proceedings against petitioner are not reviewable by the courts, but only by reviewing military authorities. From this viewpoint it is unnecessary to consider what, in other situations, the Fifth Amend- ment might require, and as to that no intimation one way or the other is to be implied.""

C. The Dissenting Opinions

Despite the Chief Justice's best efforts, the questions of the Fifth Amendment due process violations and command responsibility still led to tremendous dissension within the Court. In the end, Justices Murphy and RutledgelL9 wrote two powerful and moving dissents. As Justice Rutledge was to state:

Not with ease does one find his views at odds with the Court's in a matter of this character and gravity. Only the most deeply felt convictions could force one to differ. That reason alone leads me to do so now, against strong considerations for withholding dissent.Ii0

I . The Fifth Amendment

A critical issue facing the Court was whether constitutional due process should be extended to a Japanese general. The Fifth Amendment states that "no person" shall be deprived of life, liberty, or property without due process of law.13' Justice Murphy insisted that the Fifth Amendment does indeed

the military exceeds the parameters set iorth in the Constitution, the Court has not only the authority but the duty to regulate these unconstitutional activities.

The Court in Yamashita stated that Congress, "in the exercise of the power conierred upon it by Article I, section 8, Clause 10 of the Constitution, . . . recognized the 'military commission'. . . as an appropriate tribunal ior the trial and punishment oioffenses against the laws o i war." Yamashita, 327 U.S. at 7. One author maintains, however, that the grant of wartime jurisdiction to a military commission neither deiines oiienses nor speciiies their punishment. Note, Command Responsibility for War Crimes, 82 Yale L.J. 1274, (1973). The author goes on to argue that Congress did not take the opportunity to define with any exactness the crime oicommand responsibility. As such command responsibility is subject to problems of unconstitutional vagueness. Id. at 1287-89. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812). (holding that a iederal court has no jurisdiction to try crimes unless Congress has deiined the ofiense with particularity).

128. Yamashita, 327 U.S. at 23. 129. Even on his deathbed on 21 April 1946 Stone agonized over Rutledge's deiection. Mason,

supra note 107, at 671 . 130. Yamashita, 327 U.S. at 41 (Rutledge, J., dissenting). 131. U.S. Const. amend. V.


apply to "any person" accused of a crime by the federal government and "no exception is made as to those who are accused of war crimes or as to those who possess the status of enemy belligerent."'31 In addition, Justice Murphy wrote:

Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is. The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color, or beliefs.'33

Complicating the issue, however, was the fact that Yamashita was tried by a military commission. Both Rutledge and Murphy emphasized in their dissents that a military commission cannot disregard the procedural rights of an accused person as guaranteed by the Con~ t i t u t i on . ' ~~ Justice Rutledge stated that no Constitutional provision is older or "more universally pro- tective against unbridled power than due process of law," and that "[tlhis long-held attachment marks the great divide between our enemies and ourselves . . . ." Therefore, he wrote,

At bottom my concern is that we shall not forsake in any case, whether Ya- mashita's or another's, the basic standards of trial which, among other guaranties, the nation fought to keep; that our system of military justice shall not alone among all our forms of judging be above or beyond the fundamental law or the control of Congress within its orbit or authority; and that this Court shall not fail in its part under the Constitution to see that these things do not happen.'35

Justice Rutledge was convinced, on the face of the record, that Yamashita had not received a fair trial. In his dissent he highlighted the Commission's refusal to allow counsel adequate time to prepare a defense. He stated that this along with the other denials of fundamental rights deprived the proceedings of "any semblance of trial as we know the in~ t i tu t ion . " '~~ Because of the Court's blatant disregard for the Fifth Amendment issue and his deep concern for it, Justice Rutledge wrote:

I am completely unable to accept or to understand the Court's ruling concerning the applicability of the due process clause of the Fifth Amendment to this case.

132. Yamashita, 327 U.S. at 26 (Murphy, J., dissenting), 42 (Rutledge, I.,dissenting). 133. Id. at 26 (Murphy, J., dissenting) (emphasis added). 134. Id. at 41-42 (Rutledge, J.,dissenting). 135. Id. (Rutledge, J., dissenting). 136. Id. at 60-61 (Rutledge, J., dissenting). Needless to say, had Justice Rutledge known of

MacArthur's interference with the "Independent Military Commission" his anger against "failure" o i due process would have increased considerably, and it i s not unlikely that other Justices would have joined in the dissent.


Not heretofore has it been held that any human being i s beyond its universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door i s dangerous to open. I will have no part in opening it. For once it i s ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for

I cannot consent to even implied departure from the great absolute. It was a great patriot who said: "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."13s

2. Command Responsibility

Justices Murphy and Rutledge also found it impossible to agree with the Court that the charge stated a violation against the laws of war.139 In fact, Justice Murphy stated that read against the background of military events in the Philippines, the charges amounted to the following:

We, the victorious American forces, have done everything possible to destroy and disorganize your line of communication, your effective control of your personnel, your ability to wage war. In these respects we have succeeded. We have defeated and crushed your forces. And now we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively besieging and eliminating your forces and blocking your ability to maintain effective c ~ n t r o l . ' " ~

The dissenting Justices were unable to find any precedent for the charge in United States constitutional history, the laws of war, or any internationally binding authority or usage.l4l Justice Murphy found this to be understandable because

[dluties as well as the ability to control troops vary according to the nature and intensity of the particular battle. To find an unlawful deviation from duty under battle conditions requires difficult and speculative calculations. Objective and realistic norms of conduct are then extremely unlikely to be used in forming a judgment as to deviations from duty. The probability that vengeance will form the major part of the victor's judgment is an unfortunate but inescapable fact. So great is that probability that international law refuses to recognize such a judgment as a basis for a war crime . . . . Life and liberty are made to depend upon the biased will of the victor rather than upon objective standards of ~ 0 n d u c t . l ~ ~

137. Id. at 78-79 (Rutledge, J., dissenting). 138. Id. at 81 (Rutledge, j., dissenting) (quoting The Complete Writings of Thomas Paine 588

(Foner ed. 1945)). 139. Id. at 31 (Murphy, I . , dissenting). 140. Id. at 34 (Murphy, J., dissenting). 141. Id. at 35 (Murphy, j. dissenting), 42-43 (Rutledge, J., dissenting). 142. Id. at 35-36 (Murphy, j., dissenting).


Justice Murphy reiterated that Yamashita had not been charged with personally participating in the atrocities or with ordering or condoning their commission, or even with knowledge of the crimes.'43 As Murphy pointed out, "This indictment in effect permitted the military commission to make the crime whatever it willed, dependent upon its biased view as to petitioner's duties and his disregard thereof."'44

Justice Rutledge commented similarly on the charge of command responsibility and added the following sentiment:

If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice, including this one, both in their own judging and in their new creation. The proceedings in this case veer so far from some of our time-tested road signs that I cannot take the large strides validating them would demand.14j

Despite the efforts of the dissenting Justices the Court held that

the detention of petitioner for trial and his conviction, subject to the prescribed review by the military authorities, were lawful, and . . . the petition for certiorari, and leave to file in this Court petitions for writs of habeas corpus and prohibition should be, and they are Denied.ld6

In the early morning of 23 February 1946 General Tomoyuki Yamashita was hanged at Los Banos, a town thirty-five miles south of Manila.14'

D. Racism and the Subsequent Use of Command Responsibility

To date, the version of the command responsibility doctrine invoked in the Yamashita trial has been applied only to Japanese officers whose troops have committed a t r 0 ~ i t i e s . l ~ ~ In the Nuremberg trials the US judges abandoned the "must have known" reasoning of the Yamashita decision. Instead, they required "proof of a causative, overt act or omission from which a guilty intent can be inferred before a verdict of guilty wil l be p r o n ~ u n c e d . " ' ~ ~ The

143. Id. at 28 (Murphy, J., dissenting). 144. Id. (Murphy, J., dissenting). 145. Id. at 43 (Rutledge, J . , dissenting). 146. Id. at 25-26 (Rutledge, J., dissenting). 147. Reel, supra note 33, at 239. 148. Hane, supra note 31, at 346. In the Tokyo trials approximately twenty Class B war criminals

were charged wi th the Yamashita version of command responsibility. Al l were acquitted. Id.

149. Reel, supra note 33, at 242. Defense counsel Reel states that the Nuremberg indictments took great care to allege that . . . prisoners "authorized, directed, or participated in" the actual crimes. According to Reel, "nowhere in the records of the Nuremberg trials is the


Vietnam War also revealed problems inherent in the charge. The case of Captain Ernst Medina, in 1971, was the only command responsibility prosecution to be brought against a US officer during that war.150 Medina was the immediate superior of Lt. William L. Calley, jr., who had been convicted by a court martial of directing the massacre of civilians at My Lai. Although the Yamashita case was precedent, Medina defense counsel F. Lee Bailey stated, "I don't think that what is done to a jap hanged in the heat of vengeance after World War II can be done to an American on an imputed theory of responsibility." Indeed, the military court declined to apply the Yamashita precedent in Medina's case"' and instead set entirely different criteria than had been required for Yamashita's conviction. The court instructed the jury that in order to find Medina guilty it would have find that the Captain had actual knowledge of the a t r 0 ~ i t i e s . l ~ ~

Indeed, General Telford Taylor, former American Chief Prosecutor at Nuremberg, stated that "if you were to apply to [General Westmoreland and other US generals] the same standards that were applied to General Ya- mashita, there would be a strong possibility that they would come to the same end as he did."lj3 This sentiment echoed the prediction made earlier by justice Murphy in his Yamashita dissent:

[Iln the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today. No one in a position of command in an army, from sergeant to general, can escape those implications. Indeed, the fate of some future President of the United States and his chiefs of staff may well have been sealed by this decision.'"

It is not surprising, then, that the international community rejected the Yamashita version of the command responsibility doctrine in the 1977 Ge- neva Protocols regarding the punishment of war crimes. The proposed US amendment suggested that the definition include a "should have known" clause, under the reasoning set forth in the Yamashita decision. The Geneva delegations, however, found this proposal to be "unacceptable as a basis for future war-crimes prosecution^."'^^

fundamental principal of criminal law-personal culpability-so blatantly disregarded as it was in the Yamashita case." Id.

150. See generally Note, supra note 127, at 1304. 151. Luther West, They Call It justice 186 (1 977). 152. Id. at 185-86. In reality, Yamashita had been completely cut off from communication

with the troops in Manila who committed the atrocities for which he was convicted. According to trial transcripts however, Medina was not only close by but was in radio contact with his troops at the time of the My Lai massacre. Ironically, Medina was acquitted. Note, supra note 127, at 1274 n.2.

153. Neil Sheehan, Taylor Says by Yamashita Ruling Westmoreland May Be Guilty, N.Y. Times, 9 Jan. 1971, at 3.

154. Yamashita, 327 U.S. at 28 (Murphy, J., dissenting). 155. Lael, supra note 51, at 133-35.

330 HUMAN RIGHTS QUARTERLY

V. THE TRIAL OF ADMIRAL SOEMU TOYODA: 28 OCTOBER 1948 T O 6 SEPTEMBER 1949

Q: At any time just before or during the battle of Manila did you ever issue any orders to the commanding officers of the Southwest Fleet . . . ?

A: As commander-in-chief of the Combined Fleet I put out a general order concerning the operation in the Philippines as a whole . . . I had instructed the Southwestern Fleet Headquarters that Manila is a very important point as far as the Navy was concerned and therefore should be defended to the very end.13b

-Trial Testimony of Admiral Soemu Toyoda

A. The Missing Directive

One variable throughout Yamashita's trial was the possible existence of orders to the Japanese naval forces in Manila from a source other than Yamashita.15' It was obvious to Yamashita's defense team that just such a directive, whether written or verbal, must have been given. Testimony from lwabuchi and the Manila naval forces themselves, of course, was unavailable, as none had survived. Due to limited time and resources, the defense counsel were unable to find such an order.158

Yet an order to the naval forces had indeed been given-by Japan's highest ranking Naval officer, Admiral Soemu T0y0da. l~~ Two years after Yamashita's execution, an International Tribunal in Japan tried Admiral Toy- oda for the identical war crimes for which General Yamashita had been executed.lbO Itwas not until 1951, however, that the suspicionsof Yamashita's defense counsel were confirmed. At that time George A. Furness, the defense counsel at the Tokyo Trials for Admiral Toyoda, called on A. Frank Reel and told him of the orders given by Toyoda to the naval forces in Manila. He further told Reel that, as a result of his client's incriminating testimony, the defense counsel based its defense of Toyoda on the grounds that Yamashita had already been executed for the Manila atro~it ies. '~'

156. Toyoda transcript at 4. 157. According to authors Pritchard and Zaide, on 16 April 1945, after MacArthur's reconquest

of the Philippines, the US War Department issued a statement making it clear that many of the Japanese atrocities it listed had been carried out on orders from senior Japanese officers in Tokyo. R. John Pritchard & Sonia M. Zaide, The Tokyo War Crimes Trial x (1 987).

158. Reel Interview, supra note 12. 159. Toyoda transcript at 5. 160. Reel Interview, supra note 12. According to A. Frank Reel, during their meeting in 1951

Reel and Furness compared the charges against their respective clients. In doing so they found that the charges were exactly the same, "not a comma had been changed." Id.

161. Id. These facts were not publicized. Only as a result of Furness's visit was this key piece of information given to Reel and finally made available to this author during her 1988 visit with defense counsel Reel.

1992 War Crimes Trial of General Yamashita

B. The Toyoda Trial Begins

The charter for the international war crimes trial at Nuremberg had been negotiated at an international conference in London. The Tokyo Charter, on the other hand, was an executive order with MacArthur acting under a mandate from the Joint Chiefs of Staff.lb2 Twenty-eight Class A war criminals were tried by the International Military Tribunal for the Far East (IMTFE) in Tokyo between May 1946 and April 1948 on charges of "crimes against peace" and the "planning, preparation, initiation, or waging of aggressive war."163 In contrast to the vast scholarship regarding the Nuremberg trials, relatively little has been written about the so called "Tokyo Trials." In fact, the Trials have virtually disappeared from recorded h i ~ t 0 r y . l ~ ~

Later in Yokohama other military commissions were set up to try Class B criminals, of which Admiral Toyoda was one. There is even less written on these trials than on the Class A trials.165 The Yokohama tribunals charged approximately twenty Japanese officers as Class B criminals. As such, the prosecution accused them of violating the laws and customs of war and charged them with command responsibility for troops who had committed atrocities.lb6

Admiral Soemu Toyoda's trial began on 28 October 1949. On the first day of the trial, Toyoda testified as to the events in Manila. His testimony set forth the following facts. First, in early January 1945, Toyoda's subordinate in Manila, Admiral Okochi, was to transfer limited command over the Manila defense force to the army with the proviso that the navy would retain veto power over the decision. Toyoda stated that Okochi was told that should Okochi find it to be a "disadvantage" to have the lwabuchi unit under Yamashita, he could "take it

Second, Toyoda testified that just before or during the battle of Manila Admiral Toyoda issued an order to the commanding officer of the Southwest

162. Minear, supra note 64, at 20. 163. Hane, supra note 31, at 345-46. Class C criminals were accused of such crimes as the

mistreatment of prisoners of war. In 1957 the sentences of all those convicted at Tokyo were commuted. Id.

164. For a discussion of this, see generally Brackman, supra note 65; Chihiro Hosoya et al., The Tokyo War Crimes Trial: An Internation Symposium (1 986). While hundreds of books have been written about the Nuremberg trials, until the 1980s only a handful had been written about the Tokyo Trials. More importantly, unlike the Nuremberg Trials, there has been no official publication of either the documents or trial records of the Tokyo proceedings. The original documents were disbursed after the trial to various libraries around the world. Pritchard & Zaide, supra note 157, at vii. The 1987 private publication of the Tokyo trial transcripts by Pritchard and Zaide is the first of its kind. Even this monumental work has its limitation, for it only provides transcripts of the Class A criminals. Class B transcripts including that of Admiral Toyoda are still difficult to obtain.

165. See generally Robert Miller, Note, War Crimes Trials at Yokohama, 15 Brooklyn L . Rev. 191 (1949).

166. Hane, supra note 31, at 346. 167. Toyoda transcript at 6.


Fleet (Okochi) to the effect that Manila should be defended to the very end.' 68 These orders were, of course, in direct contradiction with Yamashita's orders to the naval forces in Manila to evacuate the city. As a result, the navy effectively exercised veto power over its earlier, limited transfer of command to the army. In other words, at the time of the Battle of Manila, Yamashita was no longer the commander of the Manila naval forces. Con- sequently, even under an absolute theory of liability, Yamashita was not res~onsible for the atrocities in Manila.

C. The Argument of the Defense

As a result of Toyoda's damaging testimony, his defense counsel was in a difficult situation. At first they set forth a command responsibility argument which was very similar to the argument that had been made by Yamashita's defense counsel. They argued that Toyoda had no knowledge of the atrocities:

ITlhe prosecution's own evidence has given more than a hint of the difficulties of communications within the Philippines-indeed, within the island of Luzon itself-evidence from which it appears that even the naval commander in the Philippines [Okochi], some few scores of miles removed from the scene of the atrocities, had no knowledge of the commission of them. In such circumstances, it is submitted, it is legally impossible to impute to the defendant any knowledge of these facts simply by reason of the presumption arising from his post.Ib9

This sort of argument had failed in the Yamashita case, and there was no reason for the defense counsel to believe that such an argument would be effective here. In addition, as a result of his testimony Toyoda had effectively admitted command responsibility for the troops in Manila. As a consequence, the defense counsel was forced to form an alternative defense that would be more compelling than the knowledge defense.

Therefore, in a brash argument the defense counsel stated, "we could even concede knowledge by the defendant of the atrocities, and he would still be free of any responsibility for them."'70 The defense argued

that the Commander-in-Chief of the Combined Fleet of the Japanese Navy does not bear the responsibility for these events rests, however, not on this affirmative proof in this case merely, but as well on the fact of its having been proved elsewhere, in proceedings of which this Tribunal can take and has taken judicial notice . . . . I refer of course, to the Judgments in the cases of the United States of America against YAMASHITA Tomoyuki . . . ."I

168. Id. at 4. 169. Id. at 11 16-1 7. 170. Id. 171. Id. at 11 20.


The prosecution objected to this line of defense, stating repeatedly that the Yamashita record was not before the t r ib~na1. l '~ Nonetheless, the defense continued with its argument, admonishing the tribunal that the United States in hanging General Yamashita for the atrocities in Manila and then "un- dertaking to try this defendant [Toyoda] for the identical atrocities, has acted uncon~cionably." '~~The defense counsel further contended that such action fully justified the "often-repeated charge that these trials have vengeance as their sole p~rpose.""~

In its closing argument, the defense counsel reiterated its contention that

the very question involved-of command responsibility for the commission of those atrocities-has been judicially determined, in a prosecution initiated by the same representative of the United States Government as this Tribunal, then as now acting as the Supreme Commander of the United States forces in the Pacific area, on charges and specifications signed and sworn to by the same accuser who swore to . . . the identical incidents here charged-or, to put it in legal language, the question is re5 j~d ica ta . "~

This argument was, of course, more emotional than compelling. Indeed, there is nothing in the rules of criminal procedure which would disallow the prosecution of a second person once an innocent party has been convicted or even executed for the crime. In addition, it must be pointed out that, contrary to the defense counsel's argument, the Supreme Court made no finding whatsoever in regard to Yamashita's guilt or innocence, nor as to whether Yamashita was indeed the commander. The Court held merely that command responsibility, as defined by the Yamashita Tribunal, was a valid charge under the laws of war.'76 Therefore the Yokohama Tribunal could have validly made these same determinations in regard to Admiral Toyoda.

D. The Judgment of the Yokohama Tribunal

Despite the defects in the defense counsel's arguments, the tribunal was swayed by the politically sensitive suggestion that the Toyoda trial might be perceived as a trial of vengeance.'" Even so, the tribunal was in a difficult position. While neither Toyoda nor Yamashita may have known of the atrocities committed by the Manila troops, the facts presented to the tribunal

172. Id. at 11 19-23. Rules of evidence were relaxed for the Tokyo Trials. Id. at 501 0. 173. Id. 174. Id. 175. Id. 176. In re Yamashita, 327 U.S. 1, 17-1 8 (1 946). 177. In fairness to the members of the Tribunal, except for one none of the members were

jurists. Toyoda transcript at 5003.


demonstrated that it was Toyoda and not Yamashita who was technically in command. In addition, the Supreme Court had ruled that command re-sponsibility was a valid crime under the laws of war. Logically, then, if Toyoda was in command of the troops in Manila, the tribunal should have found him responsible for the Manila atrocities.

The tribunal was unwilling to do this. In his preface to the judgment, the Tribunal president defended the tribunal's abdication by stating:

Coming at the time that it does, and because of its nature, this trial is, in great measure, a Trial of Review.""

With its unique opportunity for review of such cases, and being so far removed from the actual incident in time and place, the Tribunal feels that it might be permitted to make comment on the invariably fair and just nature of these trials that are so patently free of any suggestion of victor's r e ~ e n g e . ' ~ ~

The tribunal then held that the Yamashita case was precedent:

It i s not within the province of this Tribunal to comment on the action of the United States Supreme Court taken in the cases of General Yamashita and Lieutenant General Homma. Suffice it to say, its decision i s precedent . . . .I8'

The tribunal would not acquit Toyoda on this questionable ground alone, however. Despite its statements as to the precedential nature of the Yamashita case, the tribunal moved on to the issue of knowledge. The tribunal pro- pounded a new doctrine of command responsibility to apply to the Toyoda facts and based its decision on this theory. In basing its decision on this theory, the tribunal entirely overlooked Toyoda's testimony regarding his orders to the Manila naval forces. Ironically, this new command responsibility rule, under which Toyoda was acquitted, was extraordinarily similar to the arguments unsuccessfully used to defend Yamashita.

[Tlhe tribunal wishes only to remark that although the atrocities, . . . are proved to have occurred, nowhere is it shown that the defendant gave any order, acquiesced, condoned, had knowledge or means of gaining knowledge; and on this point alone, this phase of the case would have fallen. It i s difficult for reasonable men to conceive that a man of the defendant's background, intel- ligence and knowledge of his own people would not know of the commission, or of the possible commission of some of these reprehensible acts. However, the acts, so the evidence indicated, were committed . . . remote in distance and communication . . . .The evidence in no way supports the fact of his knowledge and the Tribunal cannot consider it as shown or proved.I8'

178. Id. at 5004. 179. Id. 180. Id. at 5005. 181. Id. at 501 3-1 4.


The tribunal read the verdict on 6 September 1949. Upon secret written ballot, Admiral Soemu Toyoda was found "Not G ~ i l t y . " ' ~ ~

E. Assessment of the Yokohama Judgment

Initially, the outcome of the Toyoda trial seems puzzling. The tribunal went to great lengths in order to acquit Admiral Toyoda, even though he admitted giving orders to the Manila forces. In contrast, just two years earlier, the American military tribunal in Manila went to lengths just as extraordinary to find General Yamashita guilty of the identical crimes.

In reality, this odd turn of events accords with the celerity by which seemingly irreconcilable hatred gave way to cordial post-war relations between the United States and Japan. In 1945 Yamashita was the victim of the war hysteria and racial prejudice of the Pacific War. However, by 1948, the year Toyoda's trial began, the Japanese were no longer an enemy to America. As Professor Dower has pointed out, by that time the official US policy was already centered on the rehabilitation of Japan; China was now perceived as the Asian enemy.18j Admiral Toyoda was simply a beneficiary of this distinct change in attitude.

No one was more aware of this good fortune than Admiral Toyoda himself. Toyoda recognized the parallels between his war crimes charges and those of General Yamashita and discussed those parallels with an Amer- ican friend, Captain Roger Pineau. In their conversations the two sounded their disapproval regarding the events of the Yamashita trial. At the same time Toyoda and Pineau acknowledged that Toyoda's good fortune rested in large part on the fatal outcome of the Yamashita tria1.1a4

VI. CONCLUSION

The racial stereotype of the Japanese which had helped convict Yamashita was only transformed by the time of the Toyoda trial. As Professor Dower

182. Id. at 5021. 183. Dower, supra note 11, at ix. According to Professor Dower, by 1948, the year Toyoda's

trial began, China had already replaced Japan as the oriental enemy in the view of policymakers in Washington, DC. This was so even before the Chinese Communists had consolidated their victory. China was now to be feared and hated; Japan was to be rehabilitated. Id. at 310.

184. Correspondence with author from Captain Roger Pineau (14 Sept. 1988) (discussing his conversations with Admiral Toyoda regarding the Toyoda and Yamashita trials). Pineau stated that he and Toyoda "clucked at the general's misfortune and chuckled at Toyoda's


has written, such racism remains "latent, capable of being revived again in times of

Indeed, the most disturbing aspect of the events surrounding the Ya- mashita case and the Japanese-American cases is, without a doubt, the refusal of the Supreme Court to recognize the racial issues invoked therein. In reviewing several of these cases Professor Eric Yamamoto has stated that in times of crisis the executive and congressional branches of the government "provide no inherent protection for minorities which need access to the political system." These branches of government are subject to majority rule and, therefore, to pressure from political constituencies. Precisely for this reason, the judiciary must provide such protection at times when the "political branches are most likely to over-react" and jeopardize civil liberties.lE6

Disturbingly, it has also been argued that in times of great national fear "only modest reliance can be placed on the Supreme Court"; that the Court cannot "single handedly preserve the civil liberties that the rest of the nation seeks to s~ppress . " '~~ Certainly the Yamashita, Hirabayashi, and Korematsu cases are illustrative of the "dominance of politics over law" in such times of crisis.lE8

Justice Murphy stated, however, that it is precisely when emotions run high that the Supreme Court must adopt a "dispassionate attitude toward cases of this nature."le9 Ironically, in Ex parte Milligan, the case on which the Yamashita case based its right to review by habeas corpus, the Supreme Court itself stated:

[The founding fathers] foresaw that troublous times would arise . . . and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States i s a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstance^.'^"

good fortune." Id. In addition, Pineau stated that he concurred with Yamashita defense counsel about the whole affair; specifically, that MacArthur's determination to hang Yamashita was simply to benefit his own political career. Id.

185. Dower, supra note 1 1, at 13. 186. Yamamoto, supra note 1 19, at 48. 187. Leo Pfeffer, This Honorable Court (1 965). Pfeffer argued this point specifically in regard

to the Stone Court's war-related decisions. Id. at 352. 188. See generally Peter Irons, New Deal Symposium: Politics and Principle: An Assessment

of the Roosevelt Record on Civil Rights and Liberties, 59 Wash. L. Rev. 693, 71 1 (1984). Professor Irons suggests that Franklin D. Roosevelt did little to advance the cause of civil rights and liberties in his twelve years as president. Id. at 693.

189. Yarnashita, 327 U.S. at 40-41 (Murphy, J., dissenting). 190. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).


In addition, former Supreme Court Chief Justice Earl Warren has written that the Supreme Court holds a mandate to safeguard freedom from excessive encroachment by governmental and, particularly, military authority. Ac- cording to Warren, the essential difference between the United States and totalitarian nations is that the military does not "dominate, but rather, is separate and subordinate to civil a u t h ~ r i t y . " ' ~ ~ Interestingly, Justice Warren was the Governor of California in 1942 and recommended the internment of the Japanese Americans.19*

While the holdings in the Japanese-American cases remain precedent, many people have fought to right what has been considered to be historically unjust. As a result of these efforts the United States government has finally apologized for the internment of Japanese-American citizens by enacting the Civil Liberties Act of 1988.lV3 Additionally, under writs of coram nobis, federal courts in 1984 and 1987, respectively, vacated the criminal charges against Korematsu and H i rabaya~h i . ' ~~ As District Court Judge Patel stated in Korematsu, the court vacated the criminal charges to ensure that "in times of war or declared military necessity, our institutions [remain] vigilant in protecting constitutional guarantees."19'

Similarly, the holding in the Yamashitacase remains precedent. Yet here too, many have fought to keep the case of General Yamashita alive. In fact, the inspiration of this author was in large part the Yamashita defense counsel who were indeed "vigilant in protecting constitutional guarantees."lq6

It is a basic rule of law that criminal sanctions should not be imposed on anyone without some showing of culpability on their part. However, Yamashita was convicted and hanged for a crime for which there was no showing of culpability, in a trial which eliminated basic Constitutional guarantees. Nonetheless, this study has shown that even under this strict liability theory of command responsibility, Yamashita should not have been convicted. In addition, this study has demonstrated that the conviction and the Supreme Court decision which followed were influenced in large part by racism.

Yet the United States, alone among the international community, clings to this version of command responsibility. Therefore, the threat remains that

191. Earl Warren, The Bill o f Rights and the Military, 37 N.Y.U. L. Rev. 180 (1 962). Earl Warren was US Supreme Court Chief Justice from 1953-1 969.

192. Irons, supra note 18, at 21 3. 193. See supra note 1 19. 194. Id. 195. Korematsu, 584 F.Supp. at 1420. 196. This author is grateful to defense counsel A. Frank Reel and J. Gordon Feldhaus who

gladly gave of their time to speak with the author about the events of the trial; and to Gina Guy and Harry E. Clarke, Jr., the daughter and son of defense counsel George F. Guy and Harry E. Clarke, who were most helpful and encouraging.


what occurred in the Yamashita case might easily be repeated-in a different forum and with perhaps a different race of defendants-unless those who are charged with the pursuit of justice in future war crimes trials pursue justice not from the vantage point of racism or vengeance but based on the Constitution and the Bill of Rights. Accordingly, the United States should acknowledge the miscarriage of justice that occurred nearly fifty years ago in a courtroom in Manila by rejecting the Yamashita precedent as a basis for any future war crimes trials, whether under the jurisdiction of a national or an international court of law. Only in this way will the judgment against Yamashita be vindicated and the ramifications of that judgment on future war crimes trials be avoided.

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Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki YamashitaAnn Marie PrévostHuman Rights Quarterly, Vol. 14, No. 3. (Aug., 1992), pp. 303-338.Stable URL:


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17 The Transformation of Immigration LawPeter H. SchuckColumbia Law Review, Vol. 84, No. 1. (Jan., 1984), pp. 1-90.Stable URL:

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113 Taking Institutions Seriously: Introduction to a Strategy for Constitutional AnalysisNeil K. KomesarThe University of Chicago Law Review, Vol. 51, No. 2. (Spring, 1984), pp. 366-446.Stable URL:

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http://links.jstor.org/sici?sici=0275-0392%28199208%2914%3A3%3C303%3ARAWCT1%3E2.0.CO%3B2-P&origin=JSTOR-pdf

http://links.jstor.org/sici?sici=0010-1958%28198401%2984%3A1%3C1%3ATTOIL%3E2.0.CO%3B2-%23&origin=JSTOR-pdf

http://links.jstor.org/sici?sici=0041-9494%28198421%2951%3A2%3C366%3ATISITA%3E2.0.CO%3B2-8&origin=JSTOR-pdf

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