From Advance to Barbarism
The Trial of General Yamashita
|Civilized warfare: The Surrender of Breda by Valasquez|
The trial of General Tomoyuki Yamashita was in several important respects very unlike the trial of Field Marshal Kesselring. The issues in the trial of “the Tiger of Malaya” were not overshadowed by the knowledge that an acquittal of the accused should discredit the previous judgment of a tribunal of brother officers, dealing with the same facts, in an earlier prosecution. Field Marshal Kesselring was at least tried by a court composed of fellow Europeans belonging to a nation which only since 1914 could be described as national enemies: General Yamashita, on the other hand, was a member of the Yellow Race and he was tried by a court composed of members of the White Race by which at the time the Japanese were regarded as presumptuous oriental dwarfs who had dared to challenge White supremacy. Although during recent years, beginning with the trial of the two anarchists Sacco and Vanzetti in 1927 down to the trial of the communist traitor, Alger Hiss, in 1949, American methods of administering justice have been subjected to much patronising criticism by British lawyers, the trial of General Yamashita in many ways compares very favourably with the trial of Field Marshal Kesselring. Under the American legal system this distinguished Japanese prisoner of war was provided by his accusers with American counsel to defend him, lawyers familiar with American legal procedure, and it was made possible for him on conviction to appeal to the American Supreme Court. Kesselring, on the other hand, had to rely on German lawyers who knew nothing about British military legal procedure. No possibility existed for him to appeal against conviction to the House of Lords, since, by an amusing legal fiction, British military tribunals, so far as prisoners of war are concerned, are deemed infallible.
These trials are alike in that they both ended in grave and indisputable miscarriages of justice, Yamashita being hanged and Kesselring being condemned as a result of his conviction to gum paper bags in the company of common criminals until after five years he was released by what was called “an act of clemency.” The ultimate consequences of the conviction of Yamashita, however, are certain to be graver and far more enduring than the conviction of Kesselring. By posterity Kesselring will be remembered merely as one of a number of able European soldiers who were wrongly convicted by courts composed of other European soldiers during a period of acute mental disturbance following a European civil war which was conducted by both sides with hitherto unparalleled barbarity. Yamashita, on the other hand, will be remembered as a member of the Yellow Race who was wrongly convicted by a court composed of members of, at that time, dominant White Race. In a world which has come to profess abhorrence of racial discrimination in any form, his trial will long be cited, rightly or wrongly, as an example of the methods by which Western Imperialism strove to keep in subjection the coloured peoples of Asia.
Without question General Yamashita was one of the most gifted military leaders who fought in the Second World War. It has been customary to attribute the disastrous outcome of the Malayan Campaign to the mistakes of Yamashita’s British opponents. This is unfair both to them and to him. The task entrusted to him at the outbreak of war by the Mikado might reasonably have been dismissed as impossible by the British High Command. In brief, he was ordered to land an army of some 50,000 men on the north-eastern coast of the Malay Peninsula, a distance of 1,700 miles from the nearest Japanese territory, the island of Formosa, in spite of the fact that he enjoyed no assured command of the sea; then to advance southward down the entire length of the peninsula, a distance of over 350 miles, along roads through dense jungle, overcoming on the way the resistance of the defending forces, numbering nearly 100,000 men; and finally to capture the great fortress of Singapore on an island separated from the mainland by a deep channel half a mile wide. It only remains to add that the Malay Peninsula at its widest part is only 150 miles across from east to west and the main road running southward crosses half a dozen streams, each one of which offers a good defensive position to a defending army. No blame therefore attaches to General Percival and his advisers if they dismissed this operation as too hazardous for any sane general to undertake.
Nevertheless General Yamashita achieved what might reasonably have been regarded as the impossible. On the seventieth day after the first landing of Japanese troops on the coast of Malaya, the fortress of Singapore, after an assault lasting eight days, surrendered. 90,000 British, Indian and Australian troops laid down their arms.
This astonishing triumph shattered for ever the legend of the invincible military supremacy of the White Race which dates from the days of Marathon. The consequences of this were not expunged by the fact that four years later the Japanese were forced by the overwhelming military and industrial strength of Great Britain and the United States, aided by a stab in the back by Soviet Russia and the dropping of the first atomic bombs, to sign humiliating terms of surrender. No triumph, however spectacular, could restore the prestige of the White Man upon which Western Imperialism in Asia had for so long securely rested. As a consequence of Yamashita’s campaign in Malaya the peoples of India, Pakistan, Ceylon, Burma, Malaya, Cambodia, South Vietnam, North Vietnam, Laos and Indonesia now enjoy – if enjoy be the right word – independence. Only the inhabitants of Japan have failed to benefit from their own achievements. Like the German troops who invaded Russia in 1941, and who were first received with joy as liberators from the tyranny of Stalin, the Japanese soon made themselves hated by the inhabitants of the countries which they overran by their arrogance and brutality. In consequence, although the peoples of Asia owe their present freedom from Western Imperialism to General Yamashita’s victories, they entertain no gratitude or kindly feelings for the Japanese. The Japanese Empire, deprived of all its overseas possessions, is now a satellite state of the United States.
The trial of General Yamashita in Manila in the autumn of 1945 was fully and lucidly recorded in a book written shortly afterwards by his leading Counsel, A. Frank Reel.15 It begins with a brief outline of Yamashita’s career. He was the son of a country doctor in a remote district of Japan and although without wealth or family influence he won a place in the Cadets’ Academy after a brilliant career at school. Yamashita owes his place in history entirely to his epoch-making campaign in Malaya which culminated after ten weeks with the capture of Singapore on the 11th February 1942. For two and a half years thereafter, during which the fate of Japan was decided, his career was uneventful. Owing to the jealousy of his rivals at Army headquarters in Tokyo, and in particular of the all-powerful General Togo, he was removed from the direction of active operations and sent to command the Japanese forces in garrison in Manchuria. It was not until the fortunes of war had irrevocably turned against the Japanese that Japan’s most brilliant general was sent to take command in the Philippines, by then threatened by an American invasion in overwhelming strengths. Yamashita arrived in the Philippines on the 7th October 1944. Ten days after his arrival the American landing took place.
The charges brought against General Yamashita did not relate to his direction of the Malayan Campaign, although no doubt the resentment felt for the humiliation of the dominant White Race by an upstart people of yellow dwarfs inspired these charges. Neither was it suggested that he was in any way responsible for the enormities committed during the building of the Burma Road or in the Japanese prisoner-of-war camps. The charges related solely to happenings in the Philippines between the 7th October, 1944, and the 3rd September, 1945, when Yamashita on the express command of the Emperor surrendered.
There is no dispute concerning the situation which existed in the Philippines when Yamashita took over the command of the 14th Army Group garrisoning this American overseas colonial possession.16 After the fall of Corregidor on the 5th May, 1942, and the surrender of the American regular troops, resistance was continued by irregular units of Filipinos armed and financed by the Americans. Most of the aboriginal inhabitants of the Philippines were what was then described by their White rulers as heathen savages, a term which has fallen into disuse as wounding to the susceptibilities of the Afro-Asian bloc in U.N.O. For centuries down to 1899 they had waged guerilla warfare against the Spaniards, and for four decades after that against their new American masters. After 1942 they continued this struggle, this time against the Japanese invaders and now armed with modem weapons. Their methods of waging guerilla warfare were those which might be expected of heathen savages but which, it must be confessed, were not fundamentally different from those being employed by those Christian peoples of contemporary Europe who were subject to enemy occupations. Japanese units were ambushed and massacred; prisoners and wounded were tortured and murdered. The Japanese, as might be expected, retaliated with energy and enthusiasm. For two years one horrible atrocity was matched by another; terrorism was met by terrorism. After years of inconclusive guerilla fighting in China, the Japanese had become accustomed to dealing drastically with partisan irregulars. Like the French ten years later when faced with insurrection in Algeria, the Japanese regularly employed torture when interrogating suspects, burned villages and massacred their inhabitants. When it became clear that Japan’s defeat was certain, the irregulars intensified their ferocious attacks and the Japanese reprisals became even more wholesale and savage.
This admittedly was the situation in the Philippines which Yamashita found when he arrived there in October 1944. He was handicapped from the outset by the fact that he had never even set eyes on the Philippines before, and knew nothing of the inhabitants or the geography of these islands. He was further handicapped by contradictory and often impossible orders from the Japanese army headquarters in Tokyo, and by the fact that the naval forces and the air force units defending the Philippines were under separate commands. When, ten days after his arrival, the American invasion began, the combined effect of intensive bombing by the American Air Force which held undisputed command of the air and sabotage of the roads and railways by the irregulars, quickly led to Yamashita being completely cut off from most of the units under his command. In these circumstances it is hardly surprising that the discipline of many of the Japanese troops gave way. They defended themselves blindly and savagely. Undeniably horrible atrocities were committed. There is no reason to reject the allegation that 25,000 unarmed non-combatant civilians were slaughtered. Yamashita was gradually driven back into the mountainous northern end of the island of Luzon. He continued to resist stubbornly until Japan’s surrender in September 1945.
General Yamashita surrendered on September 3rd. On September 25th he was charged with being a war-criminal: two weeks later he was arraigned and served with an indictment with sixty-four particulars. His trial was fixed for October 29th, so his defenders were given less than three weeks to study this lengthy document and to prepare his defence. It is thus hardly surprising that Mr. Justice Rutledge of the United States Supreme Court in his dissenting judgment commented that “the accused had been rushed to trial with needless and indecent haste.” Mr. Frank Reel does not hesitate to attribute the refusal of the tribunal to grant proper time to prepare the defence to express orders sent them by General MacArthur, the supreme Military Authority in the Far East, to proceed with the work of liquidating the prisoners without delay.
It was not suggested by the prosecution that General Yamashita had been personally present at any of the numerous atrocities which were committed in various parts of the Philippines between October 1944 and September 1945, or that he had ordered or incited their commission. The prosecution maintained that as he was commander-in-chief in the Philippines he was responsible for everything his troops did during the period he commanded them.
The Tribunal convicted General Yamashita of having “failed to provide effective control over his troops,” a crime hitherto unknown in the annals of jurisprudence. He was not convicted of having done anything or ordered or incited anything to be done: he was convicted of failing to do something. The Tribunal did not find that it was within his power to do what they found he had failed to do, namely to control his troops. So it would be more accurate to say he was convicted not for doing or failing to do anything, but for being the commander of demoralised troops who, without his knowledge or approval, committed crimes.
To do them justice the Tribunal made no pretence of being an impartial body. Their duty was to carry out the wishes of the American Commander-in-Chief, General MacArthur. Several times, Mr. Reel tells us, he and the other defence counsel were rebuked behind the scenes for being obstructive. “You men are not knights in armour jousting,” General Reynolds told them, “You are officers of the Army and of this court and you are detailed to help us find the facts, not score points over the prosecution”
General Yamashita’s calm dignity seems to have aroused the personal hostility of the prosecuting counsel. Contrary to the accepted practice in war-crimes trials, the prisoner appeared in court in his uniform as a general of the Japanese army with four rows of campaign ribbons. Colonel Meek, one of the prosecuting counsel, said to Mr. Reel, “Damn it, it makes me mad, seeing him decked out in uniform. He steals the show: he dominates the court room! If I had my way I’d put him in prison overalls and put chains on him.”
Mr. Reel observes, “Even in overalls and chains General Yamashita would have stolen the show and dominated the courtroom. He personified dignity and serenity.”
So outraged were Mr. Reel and the other counsel for the defence at the way the trial had been conducted that they determined not to give up the fight as lost after the verdict and the sentence, death by hanging, had been pronounced. Nominally, there is no right of appeal from a verdict of a court martial to a civil court. In this case, however, the court had convicted the prisoner of an offence for which no one had ever been convicted before. Further, the court had admitted hearsay evidence which made it possible to maintain that the trial was a breach of the Fifth Amendment of the American Constitution which guarantees a fair trial to any person accused of a crime by the Federal Government. It was decided, therefore, to apply to the Supreme Court of the United States for its ruling on these and other objections and for a stay of the execution until this ruling had been obtained.
A frantic race against time ensued. Application had first to be made to the Supreme Court of the Philippines and then when this application was inevitably rejected, to appeal against the rejection to the Supreme Court in Washington. The prosecution was deliberately obstructive, evading service of notices and omitting to supply copy documents. In the end the Supreme Court, which grants on an average only one application made to it out of seven, was induced to act. As General MacArthur refused point-blank to postpone the execution, the Supreme Court ordered a stay of further proceedings. Thereafter the War Department granted every assistance. Air transportation – “No. 1 priority” – was given to Mr. Reel and two of his colleagues. On December 25th, 1945, they set off on a flight half way round the world from the Philippines to Washington. On January 7th, 1946, General Yamashita’s appeal was heard by the Supreme Court.
It is often said the Supreme Court upheld the verdict of the Manila military tribunal. This is incorrect. Seven judges adjudicated and five of them held they had no jurisdiction to enquire into the findings of a court martial. The court, they maintained, could not concern itself “with the guilt or innocence of General Yamashita.” If a wrong decision had been made on disputed facts, correction was the duty of the superior military authority, that is to say, of the Commander-in-Chief, General MacArthur. In the majority judgment the objection was evaded that the fundamental legal rights guaranteed by the Fifth Amendment had been disregarded by the admission of hearsay evidence. “It is unnecessary to consider here what in other situations the Fifth Amendment might require. Nothing we have said here is to be taken as indicating any opinion on the question of the wisdom of considering such evidence.”
Only an American lawyer is competent to express an opinion whether this majority judgment of the Supreme Court was technically justified. Mr. Frank Reel maintains strongly that it was not. In his brilliant book, however, he gives no indication that he realised that far more was at stake than the life of a single Japanese general. To have granted the appeal would have led to the most far-reaching and most serious political consequences. One member of the Court was Mr. Justice Felix Frankfurter who was no mere learned lawyer, but as the intimate friend and confidant of the late Franklin D. Roosevelt, had for many years advised the President on the latter’s tortuous foreign policy, and knew all there was to know concerning the international political situation. Although Frankfurter took no active part during the hearing of the appeal in court, we may be sure that he dominated his colleagues in their deliberations behind closed doors afterwards. To him it would have been clear that expediency demanded that the Supreme Court should reject General Yamashita’s appeal and above all refrain from expressing any opinion on the legality and advisability of ignoring rules of evidence and admitting hearsay testimony. The contention of Yamashita’s defenders that by ignoring rules of evidence and admitting hearsay testimony the military tribunal at Manila had failed to give Yamashita the fair trial to which he was entitled under the American Constitution might be described as veritably political dynamite. The tribunal had admittedly done this in accordance with the regulations for the disposal of Japanese prisoners of war drawn up by General Douglas MacArthur on the authority conferred on him by the President. Now MacArthur, a professional soldier with no knowledge of law, had merely adopted the innovations laid down for the trial of the major Nazi war-criminals at Nuremberg in the Charter of the London Agreement.17 Naturally he felt himself justified in assuming that the team of eminent jurists who had drafted the Charter knew their business. No doubt he felt he could hardly go wrong if he adopted the conclusions reached by such legal experts as Lord Justice Wright, one of the most distinguished members of the British Court of Appeal, and Ivan Nikitchenko, whose knowledge of Soviet law had so won him the esteem of Joseph Stalin that he had entrusted him with the task of preparing for the trial of the major Nazi war-criminals and had later sent him to represent the Soviet Union at the Nuremberg Trials in order to ensure that the verdict reached would confirm the verdict of guilt already pronounced by himself and the other chiefs of state at the Yalta Conference. No blame certainly could attach to General MacArthur for blindly following such eminent legal authorities.
The consequences, nevertheless, were extremely embarrassing, as no doubt Mr. Justice Frankfurter pointed out to his colleagues. In the circumstances, can it be doubted that he urged his learned colleagues not to waste their time debating whether one Japanese general should be hanged or should be allowed to end his days in retirement. They should realise, he no doubt pointed out, that it would be impossible to condemn MacArthur’s regulations for Yamashita’s trial without condemning the almost exactly similar regulations laid down in the Charter to the London Agreement under which at that very moment the mass trial of the major Nazi war-criminals was taking place at Nuremberg. Their distinguished colleague, Mr. Justice Jackson, was at Nuremberg acting as chief American prosecutor. Would he not regard it as an undeserved affront if he was told that the Supreme Court, of which he was a member, had ruled the proceedings in which he was taking a leading part was not a fair trial within the meaning of the Fifth Amendment because of the rules under which it was being conducted. Far more important, however, was what would America’s mighty ally, Joseph Stalin, think of such a finding. Already he was showing a disposition to be hostile. If they accepted Yamashita’s appeal a grave international crisis would result, the consequences of which no man could foresee.
To avoid precipitating an international crisis, five of the seven judges of the Supreme Court hearing Yamashita’s appeal very prudently held that if the Manila tribunal had been at fault in convicting him, it was not within their jurisdiction to set matters right, which was the business of the supreme military authority in the Far East, in other words, of the Commander-in-Chief, General MacArthur.
As so often happens in war-crimes trials, the dissenting judgments delivered are the most memorable features of the proceedings. Thus the dissenting judgment of the Indian representative on the Tokyo War-crimes Tribunal, Mr. Justice Rahabinode Pal, will be remembered long after the majority judgment delivered at that notorious war-crimes trial has been forgotten. Similarly the dissenting judgments which Mr. Justice Murphy and Mr. Justice Rutledge delivered regarding General Yamashita’s appeal to the U.S. Supreme Court will always be honoured as emphatic re-assertions of long established legal principles.
Mr. Justice Murphy in his judgment declared:–
“The Fifth Amendment guarantee of due process of law applies to ‘any person’ – American citizens, aliens, alien enemies or enemy belligerents – who is accused of a crime by the Federal Government or any of its agencies.
General Yamashita was therefore entitled to a fair trial as to any alleged crimes and to be free from charges of legally unrecognized crimes that would only permit his accusers to satisfy their desires for revenge.
General Yamashita was, however, rushed to trial under an improper charge, given insufficient time to prepare an adequate defence, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged. In all this needless and unseemly haste there was no serious attempt to charge or to prove that he committed a recognised violation of the laws of war. He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command.”
With regard to General Yamashita’s alleged failure to control the operations of the members of his command, Mr. Justice Murphy summarised the case for the prosecution in the following scathing and oft-quoted passage:
“The charges amount to this, ‘We, the victorious American forces, have done everything possible to destroy and disorganise your lines of communication, your effective control of your personnel, your ability to wage war. We have defeated and crushed your forces. And now we charge and condemn you for having been inefficient in maintaining control of your troops, during the period when we were so effectively besieging and eliminating your forces and blockading your ability to maintain effective control. Many terrible atrocities were committed by your disorganised troops. Because these atrocities were so widespread we will not bother to charge or prove you committed, ordered, or condoned them. We will assume that they must have resulted from your inefficiency and negligence as a commander. In short, we charge you with inefficiency in controlling your troops. We will judge the discharge of your duties by the disorganisation which we ourselves created in large part. Our standards of judgment are whatever we wish to make them.’”
Mr. Justice Rutledge then read his dissenting judgment which confirmed and amplified the conclusions of Mr. Justice Murphy. He was particularly scathing regarding the complete disregard of the rules of evidence. “The tribunal has accepted,” he declared, “every conceivable kind of statement, rumour, report, at first, second, third, or further hand, and even one propaganda film as evidence.” He proceeded:
“A more complete abrogation of the customary rules could hardly have been made. So far as the admissibility and probative value of evidence was concerned, the directive (of General MacArthur) made the tribunal a law unto itself and it acted accordingly.”
Mr. Justice Rutledge concluded by declaring that so flagrant were the tribunal’s departures from justice that “it was without jurisdiction from the beginning, and if it acquired jurisdiction, then its power to proceed was lost in the course of what was done before and during the trial.”
In passing, regret may be expressed that no means were available to bring the doings of the so-called International Military Tribunal at Nuremberg to the attention of the Supreme Court of the United States. Of course the majority of the Court would have timidly declined to express any opinion as they had done in the case of General Yamashita, but we may be sure that Mr. Justice Murphy and Mr. Justice Rutledge would have delivered dissenting judgments exposing with devastating logic and clarity the absurdities and iniquities committed at that macabre farce.
Although two Judges of the Supreme Court had condemned the conduct of Yamashita’s trial by the Manila tribunal in the most scathing terms and the other five judges had merely said that if the tribunal had erred it was the duty of the military authorities to rectify any wrong it had done, General MacArthur did nothing. On February 23rd, 1946, General Yamashita was hanged. Needless to say, he met his fate with stoical courage and dignity.
The execution of General Yamashita is an indelible blot on the otherwise stainless career of General Douglas MacArthur, the last of that long line of Western empire-builders and colonial administrators who created, extended and maintained that White supremacy in Eastern Asia which had begun with the great naval victory of the Portuguese Viceroy Dom Francisco d’Almeida at Cannanore on the west coast of India over the Arab and Indian fleets in 1506.
When MacArthur died at an advanced age in 1964 the Eastern Asia he had known, dominated by Western Colonialism, had become a faded and discredited memory, a subject for the quite unjustified shame for many members of the formerly dominant White Race and for the equally unjustified hatred of the formerly subject Coloured Races. It may be true that White Supremacy in East Asia was bound to disappear in the course of time. White Supremacy, however, depended less on actual military strength than on White morale. No man contributed more to the shattering of White morale than General Tomoyuki Yamashita by his epoch-making capture of Singapore. (pp. 296-319)
15. The Case ot General Yamashita by A. Frank Reel, University of Chicago Press, Chicago, 1949.
16. The annexation of the Philippines from Spain in 1899 inspired Rudyard Kipling to write his famous poem, “Take up the White Man’s burden” in which is enshrined the very spirit of what is now called “Colonialism.”
17. Article 19 of the Charter (See page 240 of this book) should be compared with Section 16 of MacArthur’s regulations, which reads: “The Commission shrill 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.” In particular the court was authorised to accept (1) any document which appears to have been issued or signed without proof of the signature or the issuance of the document; (2) all affidavits, depositions or other statements and any diary, letter or other document appearing to the Commission to contain information relating to the charge; (3) a copy of any document or other secondary evidence of its contents, if the Commission believes that the original is not available or cannot be produced without undue delay.
F. J. P. Veale, Advance to Barbarism: The Development of Total Warfare From Serajevo to Hiroshima. Mitre Press (London) 1968.