General Tomoyuki Yamashita was hanged in Manila on February 23, 1946. The fate of this officer, a first-class fighting man,affirmed something new in the annals of war. For Yamashita did not die for murder, or for directing other men to do murder in his name. Yamashita lost his life not because he was a bad or evil commander, but simply because he was a commander, and the men he commanded had done unspeakably evil things.

Yamashita was tried by military commission, a panel of five general officers, all American, sitting in the great ballroom of the bullet-pocked U.S. high commissioner’s residence in Manila. General Douglas MacArthur, as overall Pacific commander, had the power not only to convene such commissions but also to establish their powers and procedural rules. A military commission had sentenced to death certain German saboteurs landed in the United States in the summer of 1942. Such a commission was not bound by the procedural rules and safeguards inherent in both the civil and the court-martial systems.

Command responsibility is as old as war. So is guilt for murder done or murder ordered. What was different about Yamashita’s case was responsibility–to the death–for murder tolerated, knowingly or not. Colonel Harry Clarke, the general’s able and articulate chief defense counsel, put it plainly in his opening statement to the officers of the commission: ‘The Accused is not charged with having done something or having failed to do something, but solely with having been something….American jurisprudence recognizes no such principle so far as its own military personnel are concerned….No one would even suggest that the Commanding General of an American occupational force becomes a criminal every time an American soldier violates the law…one man is not held to answer for the crime of another.’ But Yamashita was.

Once the war had ended, details of the last hideous days in the Philippines began to see the light of day. For three weeks the commission heard ghastly details of slaughter and rape, of beheadings and burnings alive, of torture and wanton destruction, of the murders of the helpless–women and babies and priests and American prisoners of war.

The prosecution’s position was simple. The atrocities committed by Japanese troops were so widespread that Yamashita must have known of them; if he did not, they argued less convincingly, ‘it was simply because he took affirmative action not to know.’ So the prosecution’s case was that Yamashita knew or should have known of the horrors committed by his men, even though Japanese command and communication had broken down almost entirely during the last days of the war in the Philippines.

Although MacArthur’s headquarters assisted in procuring defense witnesses, it also advised the commission that it was ‘disturbed by reports of possible recess’ and that it doubted the ‘need of Defense for more time.’ Most specifically, MacArthur’s deputy chief of staff announced that his boss ‘desires proceedings completed [at] earliest possible date.’ The military commission soon announced its opposition to any continuance save ‘for the most urgent and unavoidable reasons.’

There was more for Yamashita’s defense counsel to be uneasy about. Five American generals sat on the commission. None was legally trained. Throughout the hearing they seemed impatient with traditional legal procedure, including some of the safeguards accorded the accused. The commission repeatedly directed defense counsel to shorten their cross-examinations and forbade both sides to criticize any interpreter in open court. Counsel was to question, said the commission, with’short, simple questions as free from artifice as if examining a child.’

Perhaps this apparent impatience was because the command feared a prolonged proceeding would eat up the time of the members and therefore delay the start of other war crimes hearings. One reporter observing the trial attributed a more sinister motive: ‘In the opinion of probably every correspondent covering the trial, the military commission came into the courtroom the first day with the decision already in its collective pocket.’

Maybe so; if that was the case, however, it reflected no more than the opinion of most of the Western world and much of the Orient as well. The revealed horrors of Japanese occupation warped a lot of people’s views. A Time magazine writer, for example, raged about Yamashita’s brutality during the Bataan Death March. The writer forgot, if he knew or cared, that the general had been stationed in Manchuria in those far-off days. Time tended to take a somewhat disdainful tone anyhow, referring to the major Tokyo trials as a ‘third-string road company of the Nuremberg show.’

The appearance of predetermination became even more pronounced when the defense revealed its intention to appeal to the Philippine Supreme Court. Both the commission and the American commander in the Philippines refused to provide copies of the transcript of trial; defense counsel prepared their own, working far into the night. And while the appeal was considered, the trial itself wound down.

By this time many observers were concerned that Yamashita was not being accorded due process. As the defense pointed out, some of the evidence against him was hearsay three times removed, and the defense was being continually directed to hurry up. Even worse, defense counsel had been confronted with allegations of 59 additional crimes even as the trial began. They had, they urged, been granted no time to prepare against these new accusations. The judges were paying little attention to the defense evidence, counsel argued, or rather to the lack of persuasive proof for the prosecution. Twelve international correspondents, they said, had taken a straw vote and unanimously found Yamashita not guilty.

Even before the Philippine court announced it had no jurisdiction over U.S. Army proceedings, defense counsel had petitioned the U.S. Supreme Court, aware that the delay needed to transmit briefs to Washington might permit execution of Yamashita before the high court could hear the case.

The result of their appeal was titled In re Yamashita. Before the Supreme Court Yamashita’s lawyers argued powerfully, as they had in Manila, that charges against Germans at Nuremberg had alleged ‘knowledge and participation’ in criminal acts. No such accusation had been made against Yamashita, nor had the proof shown he even knew of such crimes.

But the high court was not, it said, ‘concerned with the guilt or innocence’ of the general. It considered only its power to review the proceedings of the military commission, and found that it had none. Only military authorities were ‘authorized to review’ what the commission had done. Over a vigorous dissent by Justices Frank Murphy and Wiley B. Rutledge, the Supreme Court declined to hear the case.

Even as the appellate proceedings ended in Washington, the trial moved to its dramatic conclusion in Manila. After counsel had finished its closing argument, the commission announced it would rule within 46 hours. Its verdict of guilty was no surprise to anybody, including Yamashita; neither was the sentence to death by hanging. Significantly, perhaps, the date of the judgment was December 7.

Yamashita was only one of thousands facing trial for their actions during World War II–and before the war for those who had participated in the rape of China. Japanese soldiers had been killing, raping, looting and torturing all across the East since the 1930s. In 1945, at long long last, the bill was coming due. Before the courts-martial and military commissions recessed for the last time, some 5,600 Japanese had been prosecuted in more than 2,200 trials. Of these men–and a few women–more than 4,400 were convicted, and about 1,000 were executed. Testifying to the Allies’ determination to deal fairly with the enemy, there had also been about the same number of acquittals.

The nations that sat in judgment were the United States, Great Britain, Australia, the Netherlands, France, the Philippines and China. Some Japanese were ‘tried’ by the Soviet Union at its Kafkaesque worst, the tribunals serving simply as mouths for the rawest sort of political slander of the West. In stark contrast to their comrades in arms tried elsewhere, the defendants almost uniformly pleaded guilty, apologized publicly, and had something warm and fuzzy to say about the exemplary justice of the ‘People’s Paradise.’ Soviet trials are not included in the totals given above.

Preparation for dealing with war crimes had begun by mid- 1942. The Western powers by then knew a good deal about atrocities already committed during the war, to say nothing of the ghastly reign of terror that characterized the Japanese invasion of China from 1937 on. Both President Franklin D. Roosevelt and Prime Minister Winston Churchill warned Japan of the consequences of atrocities, and more British and American warnings were delivered to the Japanese government throughout the course of the war. France sent its own warning in 1945, after Japan attacked French garrisons and administrators in what was then French Indochina.

The most important and impressive warning came out of the Potsdam Conference in July 1945. The United States, Britain and China joined in it–the Russians assented later–and its language was blunt: ‘There must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest…stern justice must be meted out to all war criminals, including those who have visited cruelties upon our prisoners….’

The trial of major Japanese leaders was held in Tokyo–the International Military Tribunal for the Far East began sitting in May 1946–and has often been equated with the prosecution of the leading Nazis at Nuremberg; in fact, there were some important differences between the two proceedings. First, at Nuremberg there were just four judges, and each had an alternate. In Tokyo, there were 11 judges without alternates. Nuremberg operated in four languages, Tokyo in two. At Nuremberg, the four Allied nations were each represented by coequal prosecutors; in Tokyo, the United States led; everybody else assisted.

More important, the charges differed between the two trials. The charter under which the Tokyo court operated gave it jurisdiction only over persons accused of offenses that included the somewhat amorphous ‘crimes against peace,’ although such persons might be charged with other crimes as well. At Nuremberg, ‘crimes against peace’ were only one of several categories of possible offenses. And, while Nuremberg included as defendants certain organizations such as the Gestapo, no Japanese organizations, such as the Black Dragon Society, were charged.

Moreover, conspiracy to ‘wage aggressive war’ was the heart of the prosecution’s case in Japan. The comparable Nuremberg indictments covered a more logical and broader ground: conspiracy to ‘plan, prepare, initiate and wage aggressive war.’ Another difference that provoked considerable comment was the absence from the dock of any of the zaibatsu, the powerful Japanese industrialists. The Nuremberg indictments had included some of the top businessmen in Germany, names such as Hjalmar Schacht and Alfred Krupp. The decision not to prosecute similar people in Japan rested on the paucity of proof to show that the industrialists had aided and abetted the government in preparing and carrying out wars of aggression.

Otherwise, the two trials were similar. The Tokyo court also held defendants accountable for conventional war crimes and ‘crimes against humanity,’ much as was done at Nuremberg.

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