GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS
Government Section
22 November, 1949
MEMORANDUM FOR THE RECORD
SUBJECTS: "The Case of General Yamashita," by A. Frank Reel
This memorandum is to delineate and record the pertinent facts
bearing upon the public controversy which has arisen with respect to the
desire of the University of Chicago Press to publish in the Japanese
language for sale and distribution in Japan, the book entitled, "The Case
of General Yamashita," by A. Frank Reel.
An unusual number of free copies of this book were distributed to
editors, publishers and other prominent persons in Japan, but only one
person here, the Manager of the Hosei University Press, exhibited any
interest in its publication in the Japanese language for local sale. He
determined after informal consultation with Major D.C. Imboden of this
Headquarters that it would be inadvisable to do so and filed no formal
request. Should any such request be received, however, it would be
disapproved both because of the textual nature of the book and the
inflammatory advertising material publicly circulated by the publishers to
stimulate sales.
The book is essentially an attack upon our American system of
jurisprudence --indeed, it might better be said upon our American system
--in the refusal of the author, a practicing attorney, to accept the
judgment of the United States Supreme Court, acting through a majority
thereof, on issues both argued before that tribunal and discussed in the
book. Instead, in an almost hysterical endeavor to propagate the minority
viewpoint, subscribed to by only two of the eight participating justices,
by re-pleading anew his identical views pled and lost before the trial
commission and the highest forums of civil appeal and military review, the
author but shows himself unable to accept the ethical base establishing in
our country the primacy of majority decision. For the judgment of the
Supreme Court upon the issues was final and controlling and so remains,
despite the intervening years which have dimmed the memory of those
without access to, or detailed knowledge of, the judicial record.
That being so, suffice it to point out here that the viewpoint of the
author to the contrary notwithstanding, the Supreme Court upon hearing of
these issues adjudged: (a) that the military commission appointed by
General Styer as Commander U.S. Army Force, Western Pacific, which tried
and convicted Yamashita, was lawfully created
and lawfully convened, despite the cessation of hostilities; (b)
that the allegations of the charge against
Yamashita, tested by any reasonable standard,
adequately alleged a violation of the Laws of
War and the Commission had authority to try and decide the issue which it
raised; (c) that the regulations governing the procedure to be
followed by the Commission and directing that it should admit such
evidence "as in its opinion would be of assistance in proving or
disproving the charge or such as in the Commission's opinion would have
probative value in the mind of a reasonable man," and that in particular
it might admit affidavits, depositions or other statements taken by
officers detailed for that purpose by military authority,
was not in conflict with the Articles of War as
alleged, nor did it deprive Yamashita of the due process provided by the
Fifth Amendment to the Constitution; and (d) that Article 60 of the
Geneva Convention did not require advance notice of Yamashita's trial to a
neutral power representing the interests of Japan as a belligerent, as it
is not properly for application in connection with war-crimes charges.
A copy of the Judgment is hereto appended as Appendix A.
The opinion of the Supreme Court was the subject of a lengthy
commentary prepared by the United Nations War Crimes Commission and
published in its Law Reports of Trials of War Criminals, Volume IV, B,
Notes on the Case, pages 75-96 (attached
as Appendix B). This commentary is of interest in its discussion of
the issues raised and decided in the Yamashita case in relation to the
practices and precedents elsewhere in the broad field of war crimes
jurisprudence. Of particular interest is its discussion of the validity of
that part of the regulations governing the procedure to be followed by the
military commission in the admissibility of evidence. The author takes
emphatic exception to this provision as violative of the due process
safeguard of the Fifth Amendment to the Constitution. Commenting upon the
Supreme Court's ruling that no such constitutional violation was involved,
the United Nations War Crimes Commission points out that suoh a regulation
follows procedure normal to the European countries, including those under
Anglo-Saxon law. Indeed, the identical procedure has governed all war
crimes trials in the Pacific area.
In support of his position on this issue, the author leans heavily
upon the language of the two dissenting justices and complains bitterly
that such language and the viewpoint it expressed was not considered by
General MacArthur in his capacity as the final reviewing authority prior
to ordering the execution of sentence. General MacArthur was concerned
with the judgment of the Supreme Court as pronounced by the majority
through the Chief Justice, rather than the dissenting views of a minority,
but the latter, extensively carried by the press, were known to him and
fully considered prior to enunciating his decision. He futhermore took
cognizance of an identical minority viewpoint expressed in the case of
General Homma heard by the Supreme Court shortly thereafter, and in his
official action thereon he commented as follows;
"In reviewing this case I have carefully considered the minority
views presented by distinguished Justices of the United States Supreme
Court in negation not only as to jurisdiction but as to method and merit.
My action as well as the record in
this case would be incomplete were I to fail the obligation as the final
reviewing authority of frank expression on issues of so basic a nature. I
do so from the standpoint of a member of the executive branch of the
government in process of its responsibility in the administration of
military justice.
"No trial could have been fairer than this one, no
accused was ever given a more complete opportunity of defense, no judicial
process was ever freer from prejudice. Insofar as was humanly possible the
actual facts were fully presented to the commission. There were no
artifices of technicality which might have precluded the introduction of
full truth in favor of half truth, or caused the slanting of half truth to
produce the effect of non truth, thereby warping and confusing the
tribunal into an insecure verdict. On the contrary, the trial was
conducted in the unshaded light of truth, the whole truth and nothing but
the truth. Those who would oppose such honest method, can only be a
minority, who either advocate arbitrariness of process above factual
realism, or who inherently shrink from the stern rigidity of capital
punishment. Strange jurisprudence it would be, which for whatever reason
defeated the fundamental purpose of justice -- to rectify wrong, to
protect right and to produce order, safety and well being. No sophistry
can confine justice to a form. It is a quality. Its purity lies in its
purpose, not in its detail. The rules of war and the military law
resulting as an essential corollary therefrom have always proven
sufficiently flexible to accomplish justice within the strict limitations
of morality."
While laying all emphasis upon the dissenting
minority viewpoint to support his post-judicial contention that Yamashita
was irregularly tried and unjustly executed, the author conveniently omits
General MacArthurs statement of record giving in detail his reasons for
approving the judgment of the commission which tried Yamashita and
ordering execution of the sentence. This statement is hereunder reproduced
for the purpose of the Memorandum.
"It is not easy for me to pass penal judgment upon
a defeated adversary in a major military campaign. I have reviewed the
proceedings in vain search for some mitigating circumstance on his behalf.
I can find none. Rarely has so cruel and wanton a record been spread to
public gaze. Revolting as this may be in itself, it pales before the
sinister and far reaching implication thereby attached to the profession
of arms. The soldier, be he friend or foe, is charged with the protection
of the weak and unarmed. It is the very essence and reason for hie being.
When he violates this sacred trust, he not only profanes his entire cult
but threatens the very fabric of international society. The traditions of
fighting men are long and honorable. They are based upon the noblest of
human traits --sacrifice. This officer, of proven field merit, entrusted
with high command involving authority adequate to responsibility, has
failed this irrevocable standard; has failed his duty to his troops, to
his country, to his enemy, to mankind; has failed utterly his soldier
faith. The transgressions resulting therefrom as revealed by the trial are
a blot upon the military profession, a stain upon civilization and
constitute a memory of shame and dishonor that can never be forgotten.
Peculiarly callous and purposeless was the sack of the ancient city of
Manila, with its Christian population and its countless historic shrines
and monuments of culture and civilization, which with campaign conditions
reversed had previously been spared.
"It is appropriate here to recall that the accused
man was fully forewarned as to the personal consequences of such
atrocities. On October 24--four days following the landing of our forces
on Leyte--it was publicly proclaimed that I would 'hold the Japanese
military authorities in the Philippines immediately liable for any harm
which may result from failure to accord prisoners of war, civilian
internees or civilian non-combatants the proper treatment and the
protection to which they of right are entitled.'
"No new or retroactive principles of law, either
national or international, are involved. The case is founded upon basic
fundamentals and practice as immutable and as standardized as the most
matured and irrefragable of social codes. The proceedings were guided by
that primary rationale of all judicial purposes--to ascertain the full
truth unshackled by any artificialities of narrow method or technical
arbitrariness. The results are beyond challenge.
I approve the findings and sentence of the
Commission and direct the Commanding General, Army Forces in the Restern
pacific, to execute the judgment upon the defendant, stripped of uniform,
'decorations and other appurtenances signifying membership in the military
profession."
In his labored effort to absolve Yamashita of
command responsibility for the general conduct of his troops, the author
resorts to the hollow pretense that his communications became disrupted
and the naval and other units under his command would not obey his orders.
This is complete nonsense. He passes without mention the due, public and
repeated warning General MacArthur gave following his landing in Leyte, in
an effort to secure for prisoners of war, civilian internees and
non-combatants the protection guaranteed under the rules of modern war.
This warning, placed in evidence before the military commission trying
Yamashita, served timely to remind the latter of his solemn responsibility
and to serve notice that he would be held to account for just such an orgy
of brutality and outrage which in due course ensued. The following
language of this warning was clear and unmistakeable:
"The surrender of American and Filipino forces in
previous campaigns in the Philippines was made in full reliance that
prisoners of war would be accorded the dignity, honor and protection
provided by the rules and customs of war.
"Since then unimpeachable evidence has been
furnished me of degradation and even of brutality to which these gallant
soldiers have been subjected, in violation of the most sacred code of
martial honor. For such violations the Imperial Japanese Government will,
of course, be fully responsible to my Government.
"As Commander in Chief of
the Allied forces in the field, I shall in addition, during the course of
the present campaign, hold the Japanese military authorities in the
Philippines immediately liable for any harm which may result from failure
to accord prisoners of war, civilian internees or civilian non-combatants
the proper treatment and due protection to which they, of right, are
entitled."
That Yamashita failed to receive or understand
this warning has not been suggested, nor could it have successfully been
disputed. The brilliant campaign he conducted in opposing our forces
furthermore belies the pretense that proper control was lacking or
communications were fatally disrupted. The truth, supported on the trial
by voluminous evidence, points to one of the most sordid orgies of rape
and arson and murder over a widespread area and long period of time ever
recorded of soldiers in military history, with no effective step taken by
the responsible commander to stop or even curb the same--lest any so soon
forget let the specifications to the charge on which Yamashita was tried,
convicted, and executed, in briefed form from the record, here speak for
themselves:
"Mistreating and killing without cause or trial
more than 25,000 men, women and children, unarmed non-combatant civilians,
and devastating and destroying without military necessity entire
settlements, pursuant to a deliberate plan to massacre and exterminate a
large part of the civilian population of Batangas Province, and to
devastate and destroy public, private and religious property therein,
frorn 9 October 1944 to 1 May 1945.
"Wilfully failing to provide food and other
necessities to civilian internees, resulting in starvation and death;
mistreating and torturing more than one other unnamed civilian internee;
mistreating, torturing and killing four civilian internees without cause
or trial; and torturing and summarily executing without cause or trial
more than six internees for minor infractions of rules at Santo Tomas
Internment Camp, Manila, from 9 October 1944 to 2 February 1945.
"Mistreating and torturing numerous unarmed,
non-combatant civilians at Japanese Military Police Headquarters, Manila,
from October to December 1944.
"Torturing and killing without cause or trial
three unarmed, non-combatant civilians at Japanese Military Police
Headquarters, Manila, from 18 December to 31 December 1944.
"Torturing, mutilating, and executing Private Wade
E. Gensemer, a member of the armed forces of the United States, then a
Japanese prisoner of war at Carigara, Leyte, on or about 30 October 1944.
"Mistreating, striking, maiming, and killing,
without cause or trial, prisoners of war of the armed forces of the United
States; failing and refusing to provide adequate food, quarters and other
necessities for prisoners of war; looting and stealing the contents of Red
Cross packages intended for prisoners of war at Cabanatuan, Nueva Vizcaya
Province during November and December 1944,
"Mistreating, torturing, and executing without
cause or trial three American aviators while held as prisoners of war, at
Batan Island, Batanes Province, on 20 October 1944.
"Mistreating and killing, by burning, bayoneting
or shooting, without cause or trial, 141 prisoners of war of the United
States armed forces, and mistreating, wounding, and attempting to kill 9
others, at Puerta Princesa, Palawan Island, on or about 14 December 1944.