The Case of General Yamashita:
Memorandum for the Record

Courtney Whitney
Brigadier General, U. S. Army
Chief, Government Section



Government Section

22 November, 1949


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.