Re Yamashita
Re Yamashita
Re Yamashita
a) The military commission appointed to try the petitioner was lawfully created.
b) Nature of the authority to create military commissions for the trial of enemy
combatants for offenses against the law of war, and principles governing the
exercise of jurisdiction by such commissions, considered.
c) A military commission may be appointed by any field commander, or by any
commander competent to appoint a general court-martial, as was respondent by
order of the President.
d) The order creating the military commission was in conformity with the Act of
Congress. (Mr. Justice RUTLEDGE and Mr. Justice MURPHY dissenting.)
9. Additional Information: Yamashita Doctrine, refers to the 1945 prosecution and
eventual execution of Gen. Yamashita. It is widely accepted that Yamashita ordered
his troops not to participate in atrocities, but had poor communications with
subordinate units.
10. Analysis
- It was unprecedented and most notably in that this was the first instance in which
an enemy general had been held responsible by the United States for action (or
inaction) connected with hostilities. The novelty was not lessened by the fact that
the accused (by virtue of the diligence of defense counsel) appealed to the civilian
courts against jurisdiction claimed and exercised by the American Army.
- Both majority and minority opinions made clear that the substance of the case was
subject to re- view only by higher military authority and ultimately by the
President, the question 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 and Rutledge
rejected the theory of command responsibility as repugnant to American legal
concepts Justice Rutledge explored the still more interesting question of the
bearing of the 5th Amendment.
11. Relevant and Cited cases:
- Ex Parte Quirin, 317 U.S. 1 (1942)
- Espionage Act of 1917, 50 U.S.C. § 38.
- Ex parte Vallandingham, 1 Wall. 243
- 61 U. S. 81; Runkle v. United States, 122
- Dynes v. Hoover, 20 How. 5, Page 327 U. S. 9
- U.S. 543, 122 U. S. 555-556;
- Carter v. McClaughry, 183 U. S. 365;
- Collins v. McDonald, 258 U. S. 416. Cf.
- Matter of Moran, 203 U. S. 96, 203 U. S. 105.
- c Ex parte Milligan, 4 Wall. 2,
- 71 U. S. 132; Sterling v. Constantin, 287 U. S. 378;
- Ex parte Quirin, supra, 317 U. S. 45.
- United States v. Anderson, 9 Wall. 56, 76 U. S. 70;
- The Protector, 12 Wall. 700, 79 U. S. 702;
- McElrath v. United States, 102 U. S. 426, 102 U. S. 438;
- Kahn v. Anderson, 255 U. S. 1, 255 U. S. 9-10.
- Stewart v. Kahn, 11 Wall. 493, 78 U. S. 507.