Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

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

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

MORAN, C.J.:

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

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

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

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

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

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

We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge of
petitioner from confinement but merely his restoration to his former status as a prisoner of war, to be
interned, not confined. The relative difference as to the degree of confinement in such cases is a
matter of military measure, disciplinary in character, beyond the jurisdiction of civil courts.
Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military
Commission is not made party respondent in this case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in these case proceedings requiring it to refrain from
trying the petitioner.

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

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

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

The Commission has been validly constituted by Lieutenant General Styer duly issued by General
Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in accordance in
authority vested in him and with radio communication from the Joint Chiefs of Staff, as shown by
Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the Rules of the Land Welfare
a Military Commission for the trial and punishment of the war criminals must be designated by the
belligerent. And the belligerent's representative in the present case is none other than the
Commander in Chief of the United States Army in the Pacific. According to the Regulations
Governing the Trial of the War Criminals in the Pacific, attached as Exhibit F to the petition, the "trial
of persons, units and organizations accused as a war criminals will be the Military Commissions to
be convened by or under the authority of the Commander in Chief, United States Army Forces,
Pacific." Articles of War Nos. 12 and 15 recognized the "Military Commission" appointed by military
command as an appropriate tribunal for the trial and punishment of offenses against the law of the
war not ordinarily tried by court martial. (Ex parte Quirin, supra.) And this has always been the
United States military practice at since the Mexican War of 1847 when General Winfield Scott took
the position that, under the laws of war, a military commander has an implied power to appoint and
convene a Military Commission. This is upon the theory that since the power to create a Military
Commission is an aspect of waging war, Military Commanders have that power unless expressly
withdrawn from them.
The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner
and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by
reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of
the Rules of the Land Warfare, "the commanders ordering the commission of such acts, or under
whose authority they are committed by their troops, may be punished by the belligerent into whose
hands they may fall."

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

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

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

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

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

And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military
Commission in the admission of allegedly immaterial or hearsay evidence, cannot divest the
commission of its jurisdiction and cannot be reviewed in a petition for the habeas corpus. (25 Am.
Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326).
For all foregoing, petition is hereby dismissed without costs. lawphi1 .net

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

Separate Opinions

OZAETA, J., concurring and dissenting:

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

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

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

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

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

PERFECTO, J., concurring and dissenting:

1. FACTS IN THIS CASE

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

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

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

On October 1, 1945, by command of respondent and pursuant to authority contained in a letter from
the General Headquarters, United States Army Force, Western Pacific, dated September 24, 1945,
a Military Commission was appointed to try petitioner. At the same time several officers were
designated to conduct the prosecution and several others to act as defense counsel.

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

Said letter (Exhibit G) addressed to respondent by Brigadier General B. M. Fitch, "by command of
General MacArthur," empowers respondent "to appoint Military Commissions for the trial of such
persons accused of war crimes as may hereafter be designated by this Headquarters," with the
instructions that "all the records of trial including judgment or sentence and the action of the
appointing authority will be forwarded to this Headquarters. Unless otherwise directed, the execution
of judgment or sentence in all cases will be withheld pending the action of the Commander in Chief.
On the same date "by Command of General MacArthur" (Exhibit H), respondent was instructed to
proceed immediately with the trial of General Tomoyuki Yamashita for the charge served on
petitioner on October 2, 1945 (Exhibit B).

Upon arraignment on October 8, 1945, by the above mentioned Military Commission, petitioner
entered a plea of not guilty. On the same date the prosecution filed a bill of particulars (Exhibit 1)
with 64 items of crimes, and on October 29, 1945, a supplemental bill of particulars (Exhibit J) with
many other additional items, adding up to 123, of the specified crimes imputed to petitioner.

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

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

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

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

2. REMEDIES PRAYED FOR

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

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

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

(c) The rules of procedure and evidence under which the Military Commission purports to be acting
deny the petitioner the fair trial guaranteed by the Constitution of the United States and the
Constitution of the Philippines, and are in violation of Articles of War 25 and 38 and of other
provisions of the laws of the United States and of the Philippines.
(d) The respondent was granted to authority by the Commander in Chief, United States Army
Forces, Western Pacific, to appoint a military commission and /or to try the petitioner in the
Philippine Islands, and the Commission is, therefore, without jurisdiction to try this case.

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

3. RULES OF INTERNATIONAL LAW

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

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

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

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

4. IN ANCIENT GREECE AND ROME

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

On his return to Peloponnesus in 427 B. C., Alcibiades touched at Mayonnesus and there slew most
of the captives taken on his voyage. According to Thucydides, the Samian exiles remonstrated with
him for putting to the death prisoners who have not been in open hostilities against him.

The same historian narrates that the year before, the Mytileneans of Lesbos revolted from Athens,
but they were obliged to capitulate in the following year to Paches, who dispatched to Athens over a
thousand prisoners. Their disposal provoked discussion in the Athenian assembly. At the instigation
of Cleon, the demagogue and the former opponent of Pericles, an order was issued to slaughter not
only the men who arrived in Athens, but the entire made population of Mytilene that was of military
age, and to enslave the women and children. The execution of the order was delayed, and another
assembly was called. There an amendment of Theodotus was carried, and the previous order
countermanded.
The roman treatment of prisoners was less rigorous than the Greek. As stated by Virgilius, "the
Roman policy from the first was, on the one hand, debellare super bos, to subdue the proud and
arrogant peoples and, on the other, parcellare subiectes, to spare those who have submitted."

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

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

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

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

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

Poets, philosophers, artist, and men of intellectual distinction in general, even though they became
invested with enemy character on the outbreak of war, were honored and respected. In 335 B.C.
Alexander the Great destroyed Thebes, but he left Pindar's house uninjured and honored the poet's
descendants. In ancient Hellas was already known the practice of neutralizing cities and protecting
them from the ravages of war. Temples, priest, and embassies were considered inviolable. The right
sanctuary was universally recognized. Mercy was shown to suppliant and helpless captives. Safe-
conducts were granted and respected. Burial of dead was permitted, and graves were unmolested. It
was considered wrong to cut off or poison the enemy's water supply, or to make use of poisonous
weapons. Tre