The Evening Star (January 3, 1946)
High court to reveal war guilt stand in Yamashita case
By Doris Fleeson
The closed-door deliberations of the Supreme Court this week are being dominated by the possible legal rights of a Japanese whose moral guilt is so enormous it is not even in dispute. But he will get his legal due, and his fate will reveal the court’s stand on the brave new doctrine that men are guilty in the atomic age of the kind of wars they start and wage.
On Monday next the court will, by its own request, hear arguments upon the motion for habeas corpus and writ of prohibition and petition for certiorari of Lt. Gen. Tomoyuki Yamashita, the “Tiger of Malaya,” whose men burned and shot American soldier captives and paved the Philippines with the bones of 25,000 innocent women and children.
Yamashita was convicted by an American Military Commission in Manila. The Supreme Court of the Philippines refused to take jurisdiction over his appeal. Now the once-arrogant conqueror of Singapore has asked the Supreme Court here to remove the war criminal brand and restore him to the status of a prisoner of war in conformity with the Geneva Convention.
Yamashita will not be present. His counsel, all American Army officers, will point out to the court that the indictment does not accuse him of committing a single atrocity or of personally ordering the commission of a single one. It charges that he “failed to control operations of members of his command, permitting them to commit brutal atrocities,” and that he “thereby violated the laws of war.” His counsel will ask: “What law of war? Did Japan subscribe to it?”
Thus the court meets head-on the question that delayed for so long the start of the Nuernberg trial of Hitler’s butchers: Have crimes against humanity outstripped the law books? The Nuernberg jurists faced up to it. They agreed that if no international law existed to punish aggressive war, precedents must be established, and what are we waiting for?
Attorney General Clark and Solicitor General McGrath will argue personally the government’s case that Yamashita was justly condemned and the death sentence should be carried out. It is cautiously admitted at the Justice Department that ticklish questions are presented.
The court, meanwhile, is doing its homework with close attention to Civil War precedents. Some of the ground was covered in the appeal of the German saboteurs. In that case the court took jurisdiction but upheld the military findings.
There has always been a reluctance on the part of the court to extend military punishments beyond the war in question. A generation of Yankee school children sang, “We’ll hang Jeff Davis to a sour apple tree.” But they didn’t. Chief Justice Story refused to cooperate with the military in that enterprise.
Experienced quarters that do not discount the possibility of a surprise in the Yamashita case do not believe the court’s actions, whatever they may be, will have any effect upon the Nuernberg trials.