AW REPO\RTS OF TRIALS OF WAR CRIMINALS Selected and prepared by THE UNITED NATIONS WAR CRIMES COMMISSION VOLUME IV LONDON PUBLISHED FOR THE UNITED NATIONS vVAR CRIMES COMl\lISSION BY HIS MAJESTY'S STATIONERY DFFICE 1948 Price 5S. od. net. Official Publications on THE TRIAL OF GERMAN MAJOR WAR CRIMINALS AT NUREMBERG j JUDGMENT 1 I Judgment of the International Military Tribunal for the Trial of German Major War Criminals: ! September 30 and October 1, 1946 I (Cmd. 6964) 25. 6d.(2s. 8d.) II Errata Gratis I I SPEECHES Opening speeches of the Chief Prosecutors 25. 6d. (2s. 9d.) Speeches of the Chief Prosecutors at the Close of the Case against the Individual Defendants 35. (3s. 4d.) Speeches of the Prosecutors at the Close of the Case against the Indicted Organisations 25. 6d. (2s. 9d.) PRICES IN BRACKETS INCLUDE POSTAGE CONTINUED ON PAGE iii OF COVER I 1_,_~ ,', .. , __ LAW REPORrrS OF TRIALS OF WAR CRIMINALS Selected and prepared by THE UNITED NATIONS WAR CRIMES COMMISSION Volume IV LONDON: PUBLISHED FOR THE UNITED NATIONS WAR CRIMES COMMISSION BY HIS MAJESTY'S STATIONERY OFFICE 1948 CONTENTS PAGE FOREWORD BY THE Ri. HON. THE LORD WRIGHT OF DURLFY vi THE CASES: 21. TRIAL OF GENERAL TOMOYUKI YAMASHITA United States Military Commission, Manila (8th October­ 7th December, 1945) and the Supreme Court of the United States (Judgments Delivered on 4th February, 1946) 1 HEADING NOTES AND SUMMARY 1 A. OUTLINE OF THE PROCEEDINGS 2 1. THE ApPOINTMENT OF THE COMMISSION 2 2. AN INTENDED DEFENCE WITNESS PERMITTED TO ACT AS DEFENCE COUNSEL 3 3. THE ACCUSED AND THE CHARGE 3 4. THE BILL OF PARTICULARS AND SUPPLEMENTAL BILL OF PARTICULARS 4 5. DEFENCE PLEAS AND MOTIONS RELATING TO THE CHARGE AND THE BILLS OF PARTICULARS 7 (i) Claim of the Accused that a Copy of the Specifications was not Properly Served on Him 7 (ii) The First Motion to Dismiss the Case .. 7 (iii) Motion for the Filing of a Bill of Particulars 8 (iv) Plea of Not Guilty. 8 (v) Objection to the Filing of a Second Bill of Particulars 8 (vi) Motion that the Prosecution Amplify the Particulars in Certain Ways 10 (vii) The First Motion for a Continuance 10 (viii) The Second Motion to Dismiss the Case 11 (ix) A-Question relating to the Status of the Accused 15 (x) Some Later Events Relating to the Preparation of the Defence .. 15 6. THE OPENING ADDRESS FOR THE PROSECUTION 16 7. Tr-IE OPENING ADDRESS FOR THE DEFENCE 18 8. THE EVIDENCE BEFORE THE COMMISSION 18 (i) The Evidence for the Prosecution 18 (ii) The Evidence for the Defence 21 9. THE TYPES OF EVIDENCE ADMITTED .. 23 10. THE CLOSING ADDRESS FOR THE DEFENCE 23 11. THE CLOSING ApDRESS FOR THE PROSECUTION 29 iii A' iv CONTENTS PAGE 12. THE VERDICT· AND SENTENCE 33 13. AN APPEAL FOR CLEMENCY 36 14. PETITION TO THE SUPREME COURT OF THE PmLIPPINE ISLANDS 37 15. PETITION TO THE SUPREME COURT OF THE UNITED STATES 37 I. CmEF JUSTICE STONE (MAJORITY OPINION) 38 (i) The Problems Before the Supreme Court 38 (ii) The Sources and Nature of the Authority to Create Military Commissions to Conduct War Crime Trials 38 (iii) The Authority to Create the Military Commission which Tried Yamashita. 40 (iv) The Question Whether the Authority to Create the Commission and Direct the Trial by Military Order Continued after the Cessation of Hostilities. 41 (v) The Question Whether the Charge Against Yamashita Failed to Allege a Violation of the Laws of War 42 (vi) Articles 25 and 38 of the United States Articles of War and the Provisions of the Geneva Prison~rs of War Convention Regarding JudicialSuits Not Applicable to Trials of Alleged War Criminals 44 (vii) Effect of Failure. to give Notice of the Trial to the Protecting Power 48 II. DISSENTING JUDGMENT OF MR. JUSTICE MURPHY.. 49 (i) Applicability of the Fifth Amendment to the United States Constitution to War Crime Trials and to the Yamashita Trial in Particular . 49 (ii) Extent of Review Permissible to the Supreme Court in Cases Such as the Present . 50 (iii) The Question Whether the Charge against Yamashita had Stated a Recognized Violation of the Laws of War 51 III. DISSENTING JUDGMENT OF MR. JUSTICE RUTLEDGE 54 (i) Opening Remarks . 54 (ii) The Range of Evidence Admitted 57 (iii) The Question of the Accused's Knowledge 58 (iv) Concluding Remarks on the Type of Evidence Admitted 61 (v) The Alleged Denial of Opportunity to Prepare Defence 62 (vi) The Question of the Applicability of the Articles of War 63 (vii) The Question of the Applicability of the. Geneva Convention of 1929. 69 (viii) The Question of the Applicability of the Fifth Amend­ ment to the United States Constitution 73 (ix) Concluding Remarks 74 16. EXECUTION OF SENTENCE 75 CONTENTS v PAGE B. NOTES ON THE CASE.. 75 1. THE LEGALITY OF THE TRIAL OF WAR CRIMINALS AFTER THE TERMINATION OF HOSTILITIES 76 2. ALLEGED WAR CRIMINALS NOT ENTITLED TO RIGHTS RELATING TO JUDICIAL PROCEEDINGS SET OUT IN THE GENEVA CONVENTION 78 3. THE TYPES OF EVIDENCE ADMITTED IN WAR CRIME TRIAL PROCEEDINGS 78 4. THE STRESS PLACED BY THE COMMISSION ON THE NEED FOR EXPEDITIOUS PROCEDURE .. 81 5. RESPONSIBILITY OF A COMMANDER FOR OFFENCES COMMITTED BY HIS TROOPS 83 (i) The Issue in the Yamashita Trial 83 (ii) Liability of Officers for Offences Shown to have been Ordered by them 84 (iii) Liability of a Commander for Offences Not Shown to have been Ordered by Him 84 (iv) A Classification of the Relevant Trials and Legal Provisions 85 (v) Trials and Provisions Relevant to the Question of the Burden of Proof 85 (vi) Trials and Provisions Relevant to the Question of Substantive Law. 86 (vii) The Problem of the Degree of Punishment to be Applied 95 22. THE ABBAYE ARDENNE CASE. TRIAL OF S.S. BRIGADEFUHRER KURT MEYER. Canadian Military Court, Aurich, Germany (10th-28th Decem­ ~~l~ ~ A. OUTLINE OF THE PROCEEDINGS 97 1. THE COURT 97 2. THE CHARGE 98 3. THE OPENING OF THE CASE FOR THE PROSECUTION 100 4. THE EVIDENCE FOR THE PROSECUTION 101 5. THE EVIDENCE FOR THE DEFENCE 103 6. THE EVIDENCE FOR THE REBUTTAL 104 7. THE CASE FOR THE DEFENCE .. 105 8. THE PROSECUTOR'S CLOSING ADDRESS 106 9. SUMMING UP OF THE JUDGE ADVOCATE 107 10. THE VERDICT 108 11. THE SENTENCE 109 VI CONTENTS PAGE B. NOTES ON THE CASE.. 109 1. THE JURISDICTION OF THE COURT 109 2. QUESTIONS OF SUBSTANTIVE LAW 109 (i) The Offence Alleged 109 (ii) The Application of Paragraphs (3), (4) and· (5) of No. 10 of the War Crimes Regulations (Canada) .. 110 23. TRIAL OF MAJOR KARL RAUER AND SIX OTHERS. British ~Military Court, Wuppertal, Germany (18th February, 1946) 113 A. OUTLINE OF THE PROCEEDINGS 113 B. MEANING OF THE CHARGE OF BEING" CONCERNED IN" A KILLING 115 24. TRIAL OF KURT STUDENT. British Military Court, Luneberg, Germany, 6th-10th May, 1946 118 A. OUTLINE OF THE PROCEEDINGS 118 B. NOTES ON THE CASE.. 120 1. THE NATURE OF THE OFFENCES ALLEGED 120 2. THE PERSONAL RESPONSIBILITY OF THE ACCUSED FOR OFFENCES COMMITTED BY IDS TROOPS ., 122 ANNEX.-CANADIAN LAW CONCERNING TRIALS OF WAR CRIMINALS BY MILITARY COURTS .. 125 FOREWORD The" most noteworthy case reported in this Volume is that of General Tomoyuki Yamashita who was tried and condemned by a United States Military Commission in Manila. His sentence was confirmed. The matter came before the Supreme Court of the United States on a petition for a writ of habeas corpus. The petition was rejected by that Court by a majority of the judges. The Court was not empowered to deal with the issues offact which had been decided by the Court in Manila. The questions which came before the Supreme Court were questions of jurisdiction or competency. The majority, speaking by that great Judge, Stone, Chief Justice, whose death has deprived the Court of one of its greatest ornaments since its formation, held that the Military Commission was legally consti­ tuted, and that the charges exhibited in the Petition were within its competence because they were charges of violations of the law of war. The two dissenting judges founded their dissents upon certain technical question, no doubt of a basic character, but not calling for special notice here in this brief introduction which only deals with International Law. The obser­ vations of the Chief Justice (in which the majority of the judges agreed) are of leading importance for students of the law of war. In the first place there was the question whether the Military Court was validly and legally constituted. On that the Chief Justice repeated in effect what the Supreme Court had said in 1942 in Ex parte Quirin (Volume 317, United States Supreme Court Reports, page 1). 'He said that the law of the United States recognised that the Military Commission appointed by Military Command, according to recognised United States Army practice, was an appropriate tribunal for the trial and punishment of offences against the law of war (which he said is a part of the law of nations), and that offenders by statute or the law of war may be tried by such Military Commissions. The Court further repeated what it had said in Ex parte Quirin that Congress by sanctioning trial of enemy combatants for violation of the law of war by Military Commissions had not attempted to codify the law of war or mark its.precise boundaries, but had adopted the system of Military Commission law applied by military tribunals so far .as it should be recognised and deemed applicable by the Courts and as further defined by the Hague Convention.