Buehrig, Edward H.

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 25 | Issue 3 Article 13Spring 1950The Case of General Yamashita, by A. Frank ReelEdward H. BuehrigIndiana UniversityFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Legal Profession Commons, and the Military, War, and Peace CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationBuehrig, Edward H. (1950) "The Case of General Yamashita, by A. Frank Reel," Indiana Law Journal: Vol. 25: Iss. 3, Article 13.Available at: http://www.repository.law.indiana.edu/ilj/vol25/iss3/13INDIANA LAW JOURNALsucceeded in the job he has set for himself and has given a fair impression ofthe manner in which the Justice has executed his public duties.JOHN P. FRANK*-THE CASE OF GENERAL YAMASHITA. By A. Frank Reel. Chicago:The University of Chicago Press, 1949. Pp. 324.Hurriedly picked from various army commands in the Philippines at theend of the war, six American lawyers were assigned the task of defendingthe Japanese general, Yamashita, who, as commander of Japanese forces inthe Philippines from October 9, 1944, to the surrender on September 3, 1945,was charged by the American Government with responsibility for the warcrimes committed by his troops. At no time in a position to offer coordinatedresistance to the American Army, which began its relentless return to theIslands with the landings on Leyte on October 18, 1944, the Japanese forceshad succumbed to an orgy of murder, destruction, pillage, and rape. Unlikethe atrocities at the time of the surrender on Bataan, which were committedagainst American prisoners of war, these later acts were committed for themost part against Philippine civilians. The only extenuating circumstancewas the problem which guerrilla warfare posed for the Japanese-a factor,however, which was not involved in Manila where the wanton behavior of theJapanese forces was particularly shocking.Yamashita was served with the charge on September 25, 1945, and was ar-raigned on October 8. On October 29, the trial began and on December 7,the anniversary of Pearl Harbor, the sentence of death was pronounced. Theauthor of this present volume, viewing the trial from the standpoint of thedefense counsel of which he was a member, makes the reader cognizant ofthe impatient haste with which the Military Commission conducted the trialand also of the pressure which the Commission itself was under fi-om GeneralMacArthur's headquarters. From the point of view of the military authoritiesspeed seemed to accentuate the justice of a result which they anticipated withcertainty; but from the point of view of the defense counsel, all but one ofwhom were civilian lawyers in uniform, it seemed to be a gross violation ofeven the minimum requirements of due process-a fault which for them wascompounded by their belief that the charge itself failed to define a war crimeand that Yamashita was in fact innocent.The prodigious labors of defense counsel, which the author relates witha nice appreciation of the human drama involved, did not arise out of mereprofessional zeal. Nor did they arise out of fondness for Yamashita, al-though the author was obviously attracted by his personality and persuaded* Associate Professor of Law, Yale Law School.BOOK REVIEWSas to his good character. The extraordinary energy and devotion displayedby the defense arose primarily out of their inability to give any credenceto the idea that Yamashita was actually responsible. He was not chargedwith having ordered the atrocities. The logic of the charge was that hisposition of command was sufficient in itself to incur responsibility for actsof subordinates; no evidence was adduced that the acts were either ordered orcondoned-although the inference was that atrocities on such a wide scalecould not have occured without the knowledge of Yamashita's headquarters.Mr. Reel is personally convinced that Yamashita, who was new to his com-mand, never had a chance amidst the confusion created by the overwhelmingpower of the American assault to establish any effective control over hisforces, which included air and naval contingents freshly assimilated to armycommand. The crimes in Manila were perpetrated by Japanese marines who,either through confusion or insubordination, had failed to evacuate the cityaccording to Yamashita's orders.The case It re Yamashita,' decided by the United States SupremeCourt on February 4, 1946, was unprecedented in a number of its aspects, butmost notably in that this was the first instance in which an enemy general hadbeen held responsible by the United States for action (or inaction) connectedwith hostilities. The novelty was not lessened by the fact that the accused(by virtue of the diligence of defense counsel) appealed to the civilian courtsagainst jurisdiction claimed and exercised by the American Army. Had war-fare still been in active progress the Supreme Court might not have seen itsway to admitting the case to a hearing. However, the fact of the Armisticedeprived the case of the element of military urgency which is the essentialbasis for the large autonomy enjoyed by military courts. Nevertheless, havingreceived the appeal, the Court, in an opinion subscribed to by six judges,upheld the jurisdiction of the Military Commission. Both majority andminority opinions made clear that the substance of the case was subject to re-view only by higher military authority and ultimately by the President, thequestion of guilt or innocence being outside the purview of the civilian courts.Yamashita was hanged on February 23, 1946.In strongly felt and vigorously uttered dissents, Justices Murphy andRutledge denied the jurisdiction of the Commission. Both agreed, althoughit was left to Justice Murphy to emphasize, that the charge was defective infailing to accuse Yamashita of any recognized war crime. They rejectedthe theory of command responsibility as repugnant to American legal concepts1. 327 U. S. 1 (1946).INDIANA LAW JOURNALand as being without foundation in international law. 2 Justice Rutledge ex-plored the still more interesting question of the bearing of the 5th Amendment.Whereas the majority had found the Articles of War and the Geneva Con-vention of 1929 to be inapplicable to an enemy combatant, it was Rutledge'sview not only that these instruments did not exclude Yamashita, but that the5th Amendment was in any event applicable. Since the order establishing theCommission sanctioned the admittance of evidence which fell far short ofthe safeguards erected by the common law, Rutledge was prepared to find,on that basis alone, that the Commission did not have lawful control of thedefendant and that the writ of habeas corpus should issue.The eloquence of the dissents, whose authors have now been lost tothe Court through untimely death, deserves special comment. Included withintheir scope is judgment on the effect of the summary character of Yamashita'strial on the pacification of the defeated enemys and on the integrity of Amer-ican standards of justice. It is this latter consideration which moves JusticeRutledge to a painstaking formulation of his position. Although the case ison the periphery of civilian jurisdiction in hitherto untrod territory, Rutledgefinds no convincing basis on which to give the Military Commission free reign.In the circumstances, not of battle but of the enemy's acknowledged defeat,the Constitution, Rutledge contends, follows the flag, guarantees to an enemy2. Mr. Justice Murphy stated:Duties, as well as ability to control troops, vary according to thenature and intensity of the particular battle. To find an unlawfuldeviation from duty under battle conditions requires difficult andspeculative calculations. Such calculations become highly untrust-worthy when they are made by the victor in relation to the actions ofa vanquished commander. Objective and realistic norms of conduct arethen extremely unlikely to be used in forming a judgment as to devia-tions from duty. The probability that vengeance will form the majorpart of the victor's judgment is an unfortunate but inescapable fact.So great is that probability that international law refuses to recognizesuch a judgment as a basis for a war crime, however fair the judgmentmay be in a particular instance. It is this consideration that under-mines the charge against the petitioner in this case. 327 U. S. 1, 35(1946).3. Mr. Justice Murphy stated:But in the sober afterglow will come the realization of the boundlessand dangerous implications of the procedure sanctioned today. No onein a position of command in an army, from sergeant to general, canescape those implications. . . . But even more significant will be thehatred and ill-will growing out of the application of this unprecedentedprocedure. That has been the inevitable effect of every method ofpunishment disregarding the element of personal culpability. The effectin this instance, unfortunately, will be magnified infinitely, for here weare dealing with the rights of man on an international level. To subjectan enemy belligerent to an unfair trial, to charge him with an un-recognized crime, or to vent on him our retributive emotions onlyantagonizes the enemy nation and hinders the reconciliation necessaryto a peaceful world. 327 U. S. 1, 28 (1946).BOOK REVIEWSbelligerent the benefits of due process, and requires that the civilian courtsstrictly confine the jurisdiction of the military to what will withstand criticalscrutiny.Mr. Reel is notably successful in combining the dramatic aspects of hisstory with the technicalities of the law, which enhances the value of the bookfor educating the public to that little known area of law in which civilianand military jurisdictions impinge on each other. Moreover, this accountof Yamashita's case is a new reminder of the very human and violentlyemotional situations which have given rise to the safeguards which normallyhedge in our criminal procedure. The reader is persuaded that Yamashitapaid for crimes for which he was not personally responsible and which, ifcircumstances had permitted, he might have tried to suppress. The book doesnot help to explain what seems to be a consistent pattern of gratuitous crueltyindulged in by Japanese forces against civilians and prisoners of war. Neitherthe prosecution nor the defense in Yamashita's case throws light on thisinteresting question, which, perhaps, can be answered only through a closeacquaintance with Japanese culture and history. The answer to this problemis not likely to be one of a nature which permits the fixing of responsibilityfor Japanese war crimes in accordance with the recognized categories ofthe law.The reviewer is greatly impressed with the conscientious, skillful, andenergetic defense which Yamashita's counsel afforded to a fallen foe. Theselawyers, who were chosen quite at random, overcame tremendous obstaclesat almost every step, eventually carrying their case to the Supreme Courtand then on to the White House. As a layman, the reviewer can say ingood grace that this remarkable record is not without significance as anindex to the health of the American legal profession.EDWARD H. BUEIIRIGtPUBLIC ORGANIZATION OF ELECTRIC POWER, by John Bauer and PeterCostello. New York: Harper & Brothers. Pp. 263.Public Organization of Electric Power, by John Bauer and his associate,Peter Costello, presents the most effective analysis of the case for publicownership and operation of the electric power industry that has appeared.Dr. Bauer has devoted most of his life to the cause of effective regulationand he concludes with reluctance that regulation can never accomplish the na-tional organization of the industry, the reduction in costs, and the universalavailability of this basic and essential service which the public requires. "Ishould prefer continuance of private ownership under public control if thist Professor of Government, Indiana University.

The Case of General Yamashita, by A. Frank Reel

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The Case of General Yamashita, by A. Frank Reel

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