What are the political views of Richard Carpenters

Yamashita, Tomoyuki

edited by
Dr. Hubert Seliger

Philippines 1945–1946
War crimes
Manila massacre
Sook Ching massacre
Second World War

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The trial of Tomoyuki Yamashita
Philippines 1945–1946

1. Process meaning

The trial of Japanese General Tomoyuki Yamashita was the first US war crimes trial since the end of World War II. In this pioneering trial, Yamashita, one of Japan's most important generals, was indicted in World War II and, with regard to command responsibility, history of international criminal law was written.

2. People

a) The judges and court lords

Yamashita was indicted before a five-member military commission of the US military in Manila in September and October 1945. Its chairman was Major General Russell B. Reynolds (1894-1970), Director of the Military Personal Division of the US Army , with associate Generals Leo Donovan, Morris C. Handwerk and Egbert F. Bullene. All of them had held functions in the military administration and were only sent to the Philippines shortly before the start of the trial. Only the other assessor, James A. Lester, had participated in fighting in the Pacific as an artillery commander and had been involved in the liberation of the Philippines. None of the commissioners had any legal training. Donovan was to take over the chairmanship of the military commission against General Masaharu Homma after the end of the Yamashita trial.

The judge of the proceedings was General Douglas MacArthur (1880–1964). Probably no American general in history has so much power as MacArthur at the end of World War II. As the "Supreme Commander of the Allied Powers" (SCAP), MacArthur was the highest commander in the Pacific and de facto dictator over defeated Japan. Head of the legal department of the SCAP was Colonel Alva C. Carpenter from the so-called "Bataan Gang", a small group of officers who were evacuated from the Philippines with MacArthur in 1942 and have been loyal companions ever since.

b) The indictment

Yamashita and two of his total
six defenders, Frank Reel (right)
and Milton Sandberg on October 29, 1945,
Photographer unknown, © see below

Chief Prosecutor was Major Robert M. Kerr (1904–1988). The son of the University President of Oregon State University had been a lawyer in a major Portland law firm specializing in advising agricultural companies since 1929. Although the member of the army reserve had been offered a position as an army lawyer at the beginning of the war, he volunteered as a soldier for the fighting force. In 1945 he was appointed to Carpenter's legal department, where he worked on a paper on legal and political problems in war crimes trials. Kerr was assisted by colleagues in Carpenter's legal department. Manning Webster, Delmas C. Hill, William N. Calyer, Jack M. Pace, and George E. Mountz all had practical experience as prosecutors in civil life. Another member of the prosecution was the Filipino lawyer Clicerio Opinion.

The indictment before the Supreme Court brought the Federal Government's official counsel before the Supreme Court (Solicitor General) James Howard McGrath (1903-1966), who held this office in 1945 and 1946.

c) The defense

None of the defense attorneys had criminal defense experience. All of them were recruited as public defenders from administrative units of the army in Manila. Head of defense was Harry E. Clarke (born 1897), a veteran of the First and Second World Wars, the only defender who had actively participated in combat. Since 1922 he was a lawyer in Altoona, a small town in the state of Pennsylvania, as well as part-time military lawyer in the 28th Division of the National Guard. After the war he became head of the military prison for American soldiers in Manila. James G. Feldhaus from South Dakota, who worked in civil life as a tax attorney, was assigned from the staff of the military lawyers of the local commandant in the Philippines, as was the legal advisor to the American military police commander in Manila, Walter C. Hendrix, who was an attorney in civil life in Atlanta. The remaining defense lawyers were recruited from the so-called Army's Claims Service, a unit of the US Army responsible for claims for damages, including George Guy (1904–1980), a lawyer from the small town of Cheyenne, Wyoming, and Milton Sandberg, tax attorney for New York State Comptroller's Office. The most important figure in the defense, however, was A. Frank Reel (1908–2000). The graduate of Harvard Law School was since 1931 a partner of George E. Roewer, a leading member of the "Socialist Party of America", at the same time an important Boston trade union lawyer and chairman of the civil rights organization Massachusetts "Civil Liberties Committee". Reel himself was the secretary of this civil rights organization. Not least because of his book on the Yamashita trial, he was mandated in the late 1940s by Germans who had been convicted of espionage in Shanghai for their "habeas corpus" petition before the Supreme Court groundbreaking decision “Johnson vs. Eisentrager” (1950). Reel later became the national executive secretary of the American Federation of Radio Artists. After leaving in 1954, he worked as a lawyer in the media industry and was a local politician for the "Democratic Party".

At Yamashita's request, his chief of staff Akira Muto (1887-1946) and his vice Naotaka Usunomiya, both without legal training, were assigned as further defenders. Muto was sentenced to death in 1946 before the International Military Tribunal for the Far East and executed.

d) The defendant

Tomoyuki Yamashita,
General of the Imperial Japanese
Army during World War II,
Photographer unknown, © see below

The career soldier Tomoyuki Yamashita (1885-1946) was considered one of the most outstanding Japanese military leaders in World War II. As the "Tiger of Malaysia" he established his military fame primarily with the conquest of Malaysia and in particular the British crown colony and "fortress" Singapore in the winter of 1941/1942, according to Winston Churchill the worst defeat in the history of the British Empire. The Japanese army of occupation committed serious crimes during the war. For example, in the settlement of Parit Sulong (Malaysia), Japanese troops murdered 145 Australian and Indian prisoners of war. The Japanese military police (Kempetai) also carried out systematic mass murder among the Chinese civilian population, which went down in history as "sook ching". Had Yamashita been acquitted by the US, he would certainly have found himself before a British military tribunal in 1947. In October 1944, the Japanese General Staff gave Yamashita the order to bring about a decisive battle over the Philippines. After the defeat of the Japanese navy in the sea battle at Leyte, the Japanese armed forces in the Philippines were exposed to the massive air and artillery attacks of one of the largest American troop masses in history. In some cases, communication was only possible via reporters. In view of the catastrophic situation, Yamashita decided to defend only the main Philippine island of Luzon in the northern mountain regions and ordered a withdrawal from the Philippine capital Manila. The evacuation was to be carried out by a marine infantry unit under Rear Admiral Sanji Iwabuchi, which was under the orders of Shiuzo Yokoyama, a direct subordinate of Yamashita, only in tactical matters. However, Iwabuchi repeatedly ignored orders from Yamashita to withdraw from Manila, as he himself had received express orders from the naval command to defend the city to the last man. The "Battle of Manila" became one of the most brutal battles of the Pacific War. Almost 80% of the city was destroyed; Manila went down in history as the "Warsaw of the East" (Warsaw was almost completely destroyed by German troops in 1944). Iwabuchi's unit was killed down to the last man. The encircled marines committed innumerable bestial murders and rapes in Manila.

The Japanese army also acted brutally in the fight against Philippine guerrilla units. Torture such as waterboarding and summary executions by the Kempetai were commonplace. Colonel Masatoshi Fujishige, under Yokoyama, regarded all civilians in his area of ​​operations as guerrillas and depopulated the Batangas province south of Manila. An estimated 25,000 civilians are believed to have been killed on orders from Fujishige.

In the last months of the war, Allied prisoners of war lived under catastrophic conditions, many died of starvation and the prevailing undersupply. On the remote island of Palawan, Japanese troops killed over 150 American prisoners of war alone. A particularly dark chapter were the so-called "ships of hell", such as the "Oryoku Maru", which American prisoners of war were supposed to bring to Japan. Countless prisoners died due to the inhumane conditions on these transport ships.

Yamashita's indictment in Manila at the end of September 1945 was intended to atone for one of the darkest chapters of the Pacific War.

3. Indictment

Carpenter's indictment contained a single charge: Yamashita was charged with "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". There had never been a similar charge against a commanding general in the history of international martial law. Although the responsibility of superiors had already been discussed in connection with a possible indictment of the German emperor after the end of the First World War, it was not until the Yamashita trial that they should be brought to justice in the courtroom. The prosecution's attempts to derive a previously non-existent criminal offense have been meager. In the closing argument, Chief Prosecutor Kerr referred to Article 1 of the Hague Land Warfare Regulations of 1899. This was the first time that combatant status was defined in order to separate regular army units protected by martial law from irregulars. One of the prerequisites was that a hierarchical military formation had to exist, at the head of which was a commander responsible for his subordinates. From this purely descriptive description, Kerr tried to derive a criminal liability on the part of the commander, an interpretation that the authors of the Land Warfare Regulations probably had not had in mind.

What exactly should be understood by “permitting” was also left open. However, Kerr did not simplify this question in any way when he stated in the opening speech that the numerous war crimes “must have been known to the accused if he were making any effort whatever to meet the responsibilities of his command”. So did “must have known” mean that the mere fact that a commander was unable to control his troops justified his criminal liability, even if he did not obtain any concrete evidence of a crime? This question was never answered in the trial and remains one of the most controversial questions in the Yamashita trial to this day.

The strict rules of evidence of American criminal procedure law did not apply to military commissions. The sparse rules of procedure established by MacArthur's Legal Department only established the surrender of an indictment and the right to defense counsel. However, any evidence that the (legally ignorant) military commission in Manila considered admissible was permitted. The problem became particularly clear with the almost unrestricted admission of hearsay witness evidence, i.e. statements by a witness about events that he had not experienced himself but heard from a third party.

The prosecution deliberately aimed in its evidence and the selection of witnesses to have an impact on the press and the public. For example, the first prosecution witness was Corazón Noble, a well-known Filipino actress who survived the killing in Manila, seriously injured. An 11-year-old who had survived 38 bayonet stabs reported the murder of her parents.Other witnesses documented the murder of priests, hospital patients and children in Manila, as well as rape and mutilation. Despite the deliberately melodramatically staged testimony and various hearsay evidence, the indisputable evidence proved innumerable horrific crimes committed by the Japanese occupation forces.

In contrast, the introduction of the propaganda film “Orders from Tokyo” as evidence was highly problematic. The film was crude war propaganda that interpreted the destruction of the strongly Christian city of Manila as an attack by Japan on all of Christianity and highlighted the high price Filipinos paid for their loyalty to the United States. “Key scene” was a shot in which an American soldier held an unspecified bundle of documents in the camera while searching a corpse, allegedly direct orders from Tokyo for the complete destruction of the city. Although the prosecution had shown the film primarily because of its vivid depictions of the destruction and was well aware internally of the low evidential value, the presiding judge Reynolds admitted the film as evidence - amid violent protests from the defense.

The prosecution suffered a heavy defeat from the only witnesses who were supposed to establish a direct connection between Yamashita and the crimes accused. Prosecutor Joaquín Galang reported that Yamashita had met with Artemio Ricarte, a senior Filipino collaborator. The subject of the conversation was that Yamashita had ordered the murder of all Filipinos as guerrillas and the destruction of Manila. Galang's testimony collapsed when the defense succeeded in locating Ricartes' grandson, who was believed to be dead, and who in a credible testimony exposed Galang's statements as a lie. Narciso Lapus, "private secretary" Ricartes, had previously reported that the deceased had told him that Yamashita had wanted to wipe out all Filipinos. Narciso's testimony was pure hearsay and was devalued by the fact that Lapus, who was imprisoned as a collaborator, had offered himself to the US authorities as an informant and Galang admitted in cross-examination that he only “remembered Yamashita's conversation with Ricarte after meeting Lapus in prison " would have.

In the closing argument, Kerr admitted (deliberately omitting the statements of Galang and Lapus ‘and the“ Order of Tokyo ”) that no evidence or witness presented directly connected Yamashita with the war crimes committed by his troops. However, he questioned the argument put forward by the defense that communication with the units under Yamashita was not possible. No evidence has been presented for this.

Yamashita deliberately did not want to know anything about these crimes, so he was responsible for the crimes committed under martial law. The prosecution called for the death penalty
Hanging.

General Yamashita's defenders, October 1945. Seated: Lt. Col. Gordon Feldhaus, Col. Harry E. Clarke, Sr., Lt. Col. Walter Hendricks. Standing: Capt. Frank Reel, Maj.George Guy, Capt. Milton Sandberg, © see below

4. Defense / Concept of Defense

The defense held back from cross-examining prosecutors and questioning victims. Terrible things had been experienced by the numerous witnesses, and it was evident that the atrocities described were true. The defense had little to counter the melodramatic staging of the prosecution. It was therefore primarily limited to getting the witnesses to confirm that the perpetrators in Manila had worn the characteristic uniform of the Japanese Navy in order to be able to direct sole blame on Iwabuchi and his unit. The defense achieved great success in refuting the witnesses Galang and Lapus.

Almost all of the witnesses for Yamashita came from his immediate environment. A key witness was Muto, who described in detail the difficult command structure and confirmed that Yamashita had received no information about the situation in Manila from his headquarters in the mountains. Although the POW camps were formally subordinate to Yamashita, due to the difficult military situation it was not possible to inspect the camps, and Yamashita never issued orders to murder prisoners of war. The statements of Shiyouku Kou, the Japanese general responsible for prisoner-of-war and internment matters in Manila, were mixed. His obvious lies about the accommodation and treatment of the Allied prisoners of war were far from convincing. At least Kou confirmed that competing command structures existed not only between the navy and the army, but also with regard to the prisoner-of-war and internment camps. Kou reported directly to the War Department in Tokyo. He only sent Yamashita routine reports on the situation in the prisoner-of-war camps and thus gave Yamashita no specific reason to inspect the camps. The “ships of hell” were also occupied by direct orders from Tokyo under Kou. Another important defense witness was Norman Sparnon, head of the U.S. Forces Department of Translating Captured Japanese Documents. He confirmed that his department had not come across any documents proving direct orders from Yamashita for the crimes committed. Also, no direct order from Tokyo to destroy Manila was intercepted. However, Yamashita herself appeared as the best witness in his own cause. He denied any knowledge of crimes and again described the difficult situation with regard to the command structure and communication. Under the existing conditions he did his best to control his troops. Inexperienced in cross-examination, Kerr failed to uncover contradictions or to elicit an unfavorable testimony from Yamashita.

The defense against the admission of the numerous hearsay evidence was able to raise a legally weighty argument. Art. 25 of the so-called "Articles of War" - at that time the legal basis of US military law - expressly excluded a special case of hearsay witness evidence (so-called "depositions") for military commissions in which the death penalty was threatened. This defense argument was so weighty that the prosecution felt compelled to hear from none other than the senior lawyer in the US Army, Judge Advocate General of the Army Myron C. Cramer (1881–1966) - the chief prosecutor in the "Quirin" case and later judges in the main Tokyo trial - to obtain an opinion. Cramer denied the applicability of Article 25 to war crimes trials.

In the final speech, Yamashita's lawyers emphasized that he did not want to defend Manila and that it was against his will. The murder of American prisoners of war was said to have been isolated events by Japanese soldiers on their own initiative. The "ships of hell" would never have been under Yamashita's command. The alleged crimes outside Manila, especially in Batangas, are primarily due to the increased activity of the Filipino guerrillas, who enjoy no protection under international law. Yamashita never ordered crimes against the civilian population. The defense had shown that Yamashita did not know anything about the acts and, due to the military situation, could not have known anything. Principal defense attorney Clarke therefore petitioned for an acquittal.

5. The judgment and going to the Supreme Court

The judgment of the Military Commission, put forward by Reynolds, was little more than a summary of the arguments of the defense and the prosecution, pronouncing the sentence on the death penalty by hanging. Yamashita has not fulfilled his obligation to control the units under his control. Although the verdict of a military commission usually did not require a justification, the commission should at least have provided information on the charges on which Yamashita was found guilty. So whether Yamashita was specifically convicted of the destruction of Manila, for example, cannot be read from the verdict. In addition, MacArthur pushed for a quick implementation of the procedure, which was essentially designed by him. His motives are still controversial today. Critics accuse MacArthur of personal motives for revenge and the deliberate aim of a death sentence because, as commander in chief of the troops in the Philippines, he saw the surrender of the American and Filipino soldiers in the spring of 1942 as a personal disgrace. Apparently, MacArthur also tried, through the Yamashita process as a pioneering process, to firmly anchor “command responsibility” in international martial law and, in this regard, performed discreet lobbying work with US authorities in Washington.

It remained subordinate to the MacArthur and thus anything but neutral "Theater Judge Advocate for the Pacific", Clifford M. Olivetti, and a small staff of military lawyers, after reviewing the case files, a "recommendation" for MacArthur's decision as judge to confirm the To create the death penalty and thus to underpin the judgment legally. The criminal responsibility for the inability to control the soldiers under their command was previously unknown in military law. But - and with this, MacArthur's military lawyers argued similarly to the indictment in the Nuremberg trial of the main war criminals - international law is not static, but is constantly developing: “In the enlightened and newly awakened conscience of the world, there is nothing either legally or morally wrong in now holding to strict accountability not only those who by their own acts violate the laws of humanity, but also those who knowingly or negligently permit such acts to be done ”. Accordingly, the charges against Yamashita are legally admissible, according to Olivetti's team. In terms of procedural law, the process was fair, and the procedural rules were comparable to the Quirin case. Significantly, the military lawyers failed to discuss the practice of admitting evidence by the Military Commission. The high number of crimes leads, according to Olivetti, inevitably to the conclusion that Yamashita knew about the crimes or at least failed to take action against them.

With the highest court in the USA, however, there was still a central hurdle for the execution of the death sentence. Military commissions were part of the executive and were subject to very limited scrutiny by the civil courts. In 1942, through an "executive order", President Roosevelt had a military commission set up against eight German saboteurs captured in the USA. The defenders of the accused Germans called the Supreme Court with a so-called "writ of habeas corpus" petition, an appeal to review the detention of people by American authorities. In its central decision "Ex parte Quirin", the Supreme Court made it clear that it was not prevented from examining compliance with rights guaranteed by the US Constitution by military commissions. However, he also confirmed the legality of the establishment of military commissions by the executive branch and rejected the defendants' motion. The decision was entirely in the spirit of the legal school of "judicial restraint", i.e. the restriction of the Supreme Court to decisions of a purely constitutional nature and the granting of broad political leeway for the executive branch.

"Ex parte Quirin" was both a blessing and a curse for the defense of Yamashita. At that time, the Philippines was a "semi-autonomous" area and was subject to US sovereignty in many areas. After the petition was rejected by the Philippine Supreme Court, the defense lawyers had the option to go to the US Supreme Court. Her brief to the Tribunal was a pointed summary of her central arguments from the Manila proceedings: “The petitioner is not charged with having done something or with having failed to do something. He is charged with having been something to wit: a commanding officer of a Japanese force whose members offended against the law of war ”. The US government, on the other hand, relied on the “judicial restraint” before the Supreme Court. McGrath argued that issues of dealing with prisoners of war belong entirely to the political and military authority of the federal government. The arguments of the defense attorney are therefore already inadmissible.

The Supreme Court was deeply divided on the Yamashita matter.In line with “Ex parte Quirin”, the majority decision made by Stone rejected the government's view that members of enemy forces had no access to the Supreme Court. Otherwise, however, the Supreme Court followed the views of MacArthur's lawyers. The indictment against Yamashita had not yet been established in martial law. The sense of martial law, namely to protect civilians and prisoners of war, would be undermined if commanders could neglect the protection of these groups with impunity. The court failed to make any statement as to whether Yamashita actually neglected this duty or was simply unable to do so. The Supreme Court also followed, without naming it, Cramer's opinion in its comments on the Articles of War.

Judges Murphy and Rutledge wrote unusually sharp dissenting opinions. For Murphy and Rutledge, the trial had put nothing less than the fundamentals of American law in jeopardy. The Yamashita case is "the worst in the Court’s history, not even barring Dred Scott". (This refers to the notorious decision of the Supreme Court in the case of Drett Scott v. Sandford in 1857, which a few years before the outbreak of the American Civil War had strengthened the rights of slave owners.) The majority decision sealed Yamashita's fate. MacArthur upheld the death sentence, and a pardon to President Truman was unsuccessful. On February 23, 1946, Yamashita was hanged near Manila. Many of his subordinates such as Muto, Fujishige and the (albeit later pardoned) Yokoyama were also sentenced to death in trials in Manila, Tokyo and Yokohama.

6. Effect

At least for the other military commissions in the Philippines, the Yamashita trial and its strict standards of knowledge of war crimes by his troops served as a signal. The most prominent example was General Homma, referred to by the US press as the "Bataan Beast". With an almost identical charge to the Yamashita trial, he was charged with the "Bataan Death March" (1942). On the march after the surrender, at least 500 US soldiers and an estimated 1,500 more prisoners of war died in the camps shortly afterwards from lack of care, mistreatment and indiscriminate executions. Promoted by US war propaganda, the "death march" had become a symbol of Japanese barbarism in the USA. The judgments in the Yamashita trial had paved the way for a conviction of Homma, his "writ of habeas corpus" the Supreme Court dismissed with reference to the Yamashita judgment without further explanation. Criticism of this trial, apart from renewed “dissenting opinions” from Murphy and Rutledge, was muted, not least because the prosecution had succeeded in establishing a direct link between Hommas and the crime scene.

Amazingly, however, the Yamashita trial had no influence on the Nuremberg Trials. The American judges went their own way in the “Southeast Trial” (Nuremberg follow-up trial, Case 7), apparently in ignorance of the Yamashita judgment. Unlike in the Yamashita trial, the judges here set clear and unambiguous standards for the subjective knowledge of a commander in relation to crimes committed by his troops: “[W] e shall require proof of a causative, overt act or omission from which a guilty intent can be inferred before a verdict of guilty will be pronounced. Unless this be true, a crime could not be said to have been committed unlawfully, willfully, and knowingly as charged in the indictment. ”The Yamashita judgment only played a role in the OKW trial (case 12). The German defense attorney around lawyer Hans Laternser apparently saw the Yamashita case as a real danger. In their briefs for the accused Generals von Leeb and Wöhler, they pointed out that, unlike Yamashita, they had no supreme command over their troops. The court was only too happy to take up this view in its ruling in October 1948, apparently not wanting to question the judgment of the Supreme Court on the one hand, but on the other hand deliberately wanted to avoid open discussion of the critical questions of the Yamashita judgment.

Despite the ongoing debate in legal and military history research literature about the Yamashita process and its consequences, it has had limited legal consequences. The real meaning of the Yamashita judgment is rather to be seen in its symbolic effect. Frank Reel made a significant contribution to this with his book on the Yamashita process. Many of the public defenders in trials of Japanese soldiers and politicians had fearlessly criticized the US government's policies in the courtroom. This criticism also had an external impact through the press. Publications by the defense lawyers, however, were almost exclusively limited to articles in specialist journals. The fact that Reel exposed himself publicly through a book with critical political statements, which even surpassed the rhetoric of Judges Murphy and Rutledge, in the post-war period, which was still marked by memories of the cruel war, is most likely due to Reel's past as a civil rights attorney from the left-liberal East Coast milieu and his experience in fighting for civil rights.

The book, published by the Chicago University Press, remained a slow seller compared to the printed copies. However, it was reviewed in numerous magazines, had a considerable impact and even became a political issue. The US military reacted sharply to the book. The American occupation authorities suppressed reviews in Japanese newspapers and prevented publication by Hosei University Press. The concerns of the US authorities were not entirely unjustified. Following the announcement of the death sentence against Yamashita, nationalist forces gathered 80,000 signatures for a petition in Tokyo alone against the backdrop of the first post-war elections in Japan, demanding that if the sentence were not mitigated, Yamashita could commit ritual suicide. MacArthur then postponed the election until after Yamashita's execution. In the USA, Professor John H. E. Fried, Special Legal Consultant of the American judges in the Nuremberg follow-up trials, defended the Yamashita case in a long review. Yamashita was in no way convicted of his position as a general. He was convicted because he should have known about the crimes of his subordinates. In contrast, liberal reviewers such as the young attorney Richard F. Wolfson, “law clerk” of Judge Rutledge during the Yamashita trial and later colleague Reels in the Eisentrager trial, spoke of the Yamashita trial as a “debasement” of American law, but distanced themselves partly from Reel's general criticism of the Allied war crimes trials.

As early as the late 1940s, thanks in no small part to Reel's catchy book, the Yamashita trial was not simply a trial against an enemy general with controversial legal issues, but a political symbol. "Yamashita‘s ghost" (Alan A. Ryan) has been up to mischief in the collective memory of the USA ever since. It was therefore no coincidence that after the American war crimes in the Vietnam War became known, especially in the village of My Lai, Telford Taylor, the former chief prosecutor of the Nuremberg follow-up trials, brought the Yamashita trial back into the public eye. Embedded in a general criticism of the Vietnam War, he suggested that, by the standard of the Yamashita trial, the Commander-in-Chief of the US Forces in Vietnam, General William Westmoreland, should have been brought to justice. Frank Reel jumped in at Taylor and sharpened his earlier criticism with pacifist undertones.

When US President George Bush Jr. wanted to try military commissions after the devastating terrorist attacks of “9/11” with the help of the “Ex parte Quirin” decision, commentators warned urgently against the Yamashita trial Establishment of military commissions as they would not guarantee a fair trial. In 2003, against this background, the Yamashita trial was even brought to the theater stage in Canada with the play "Tiger of Malaya".

7. Appreciation / historical classification

The Yamashita trial is rightly criticized in legal and military history research to this day. The Yamashita process is regarded as a pioneering process in establishing “command responsibility” in international criminal law. For this long overdue move, the Yamashita trial was a bad start. The generous admission of highly dubious evidence, the indeterminate terminology and scope of the indictable legal basis, and, last but not least, MacArthur's questionable personal interest in a speedy trial against Yamashita (and against Homma), make the proceedings a low point in American legal history .

A few years ago, attorney Ann Marie Prévost added the Yamashita ruling to a series of infamous Supreme Court rulings that had secured the internment of Japanese-American citizens on the west coast, and suggested that the Yamashita trial was racially motivated . In fact, the press used attributes such as "froglike" and the (also incorrectly referred to) designation as "beast of Bataan" to deny Yamashita humanity and used the racist stereotypes against Japanese that are often found in US propaganda. This contrasts with reports expressing respect (and amazement) for the eloquence of Yamashita's testimony. The press at the time was also by no means unanimous on the question of guilt. One cannot speak of a general prejudice of Yamashita.

It was not so much racism that made the Yamashita judgment possible, but rather a war-related, cross-party self-restraint of the protagonists of the legal system from the Supreme Court to the lawyers of the respected left-liberal American Civil Liberties Union, which extended well into the post-war period the joint war effort and a wide scope for action for the military. It was not the American criminal defense elite, but rather young professionals, tax attorneys or small town attorneys who acted self-sacrificingly and aggressively for the accused Japanese in the courtroom. The sharp-tongued “dissenting opinions” of Murphys and Rutledges also prove that there were forces who resisted the supposed injustice judgment to the best of their ability. The ups and downs of the American legal system were very close together in the Yamashita trial.

The justified criticism of the Yamashita trial must be separated from the question of guilt, which has not yet been conclusively clarified. With Professor John H. E. Fried there were definitely weighty neutral voices who, while acknowledging Yamashita's difficult military situation, did not believe that he, as commander in chief, was cut off from all over the world and thus virtually "blind". The US military historian Peter Karsten, for example, points out that more than 500 murders were committed in the area of ​​operations of Yamashita's units in December 1944 alone, i.e. one month before the US troops landed on Luzon. Gary D. Solis, a renowned legal historian and professor of law at the United States Military Academy at West Point, rightly warns against retrospectively declaring Yamashita a victim: "For all the procedural and evidentiary questions the Yamashita case raises, and there are several, Yamashita was no virtuous innocent wrongly convicted. '[…] Not all war crimes cases are as morally clear as we would wish ”.

Handwritten note from General Yamashita to Col. Harry E. Clarke, © s.u.

8. Literature

Ferren, John M., General Yamashita and Justice Rutledge, in: Journal of Supreme Court History 28 (2003), pp. 54-80; Fried, John H. E., Review. The Case of General Yamashita by A. Frank Reel, in: Political Science Quarterly Vol. 65 (1950), pp. 446-453; Herron, Charles D., Review. The Case of General Yamashita by A. Frank Reel, in: American Bar Association Journal 36 (1950), pp. 746-747; Ives, Stephen B., Vengeance Did Not Deliver Justice, in: The Washington Post (12/30/2001), p. B02; Karsten, Peter, The Yamashita Precedent. War Crimes and Command Responsibility by Richard L. Lael, in: The American Historical Review, Vol. 88 (1983), p. 1249; Lael, Richard L., The Yamashita Precedent. War Crimes and Command Responsibility, Wilmington 1982; Maga, Timothy, Judgment at Tokyo. The Japanese War Crimes Trials, Lexington 2001; McGrath, Kevin, When Military Trial Was Unfair, in: The International Herald Tribune (11/23/2001), p. 6; Piccigallo, Philip R., The Japanese on Trial Allied War Crimes Operations in the East 1945-1951, Austin 1979; Prévost, Ann Marié, Race an War Crimes. The 1945 War Crimes Trial of General Tomoyuki Yamashita, in: Human Rights Quarterly 14.3 (1992), p.303-338; Reel, Frank, The Case of General Yamashita, Chicago 1949; Ryan, Allan A., Yamashita’s Ghost. War Crimes, MacArthur’s Justice, and Command Accountability, Lawrence 2012; Seliger, Hubert, I know You're innocent and that's all I need to know. A comparative study of the war crimes trials against General Tomoyuki Yamashita (1945–46) and Lieutenant William L. Calley Jr. (1969–76) [unpublished master's thesis, University of Augsburg, 2007]; Totani, Yuma, Justice in Asia and the Pacific Region 1945–1952. Allied War Crimes Prosecutions, New York 2015; Wolfson, Richard F., Review of the Case of General Yamashita by A. Frank Reel, in: The Yale Law Journal Vol. 59 (1950), pp. 384-386.

Hubert Seliger
August 2016

Hubert Seliger is a historian, political scientist and constitutional and international lawyer. In 2014 he received his doctorate from the University of Augsburg with a thesis on “Political Lawyers? The defenders of the Nuremberg Trials. A study of social and political history ”. The work was awarded the Forum Prize 2014 from the Forum for the History of Lawyers.

Recommended citation:

Seliger, Hubert: "The Trial against Tomoyuki Yamashita, Philippines 1945–1946", in: Groenewold / Ignor / Koch (ed.), Lexicon of Political Criminal Processes, https://www.lexikon-der-politischen-strafverarbeitung.de/ glossary / yamashita-tomoyuki /, last accessed on DD.MM.YYYY.

Illustrations

The authors and editors would like to thank the copyright holders for kindly making the images available. Rights holders that we have not been able to locate, please contact the publishers.

© Trial photo, unknown photographer, changed size, from lexikon-der-politischen-strafverarbeitung.de, CC0 1.0

© Yamashita Tomoyuki, photographer unknown, changed size, from lexikon-der-politischen-strafverarbeitung.de, CC0 1.0

© The defenders of General Yamashita, Chip Clarke, World War II Database, changed size of lexikon-der-politischen-strafverarbeitung.de

© Handwritten note from General Yamashita, Chip Clarke, World War II Database, changed size of lexikon-der-politischen-strafverarbeitung.de