[Enclosure]
Memorandum by the Legal Adviser (Hachworth)
[Washington,]
December 4, 1945.
Alleged Failure to Observe the
Provisions of the Geneva Prisoners of War Convention
of 192917
in the Trial of Yamashita in Manila as
a War Criminal
On the point that, in the trial of General Yamashita as a war
criminal, the United States has not complied with the
Prisoners of War Convention of 1929 regarding the giving of
notice to the protecting power at the opening of judicial
proceedings directed against a prisoner of war, the
following observations would seem to be pertinent.
[Page 980]
Japan is not a party to the Prisoners of War Convention.
However, in December 1941 the Department of State informed
the Japanese Government through the Swiss Government of the
intention of this Government to apply the provisions of the
convention to Japanese prisoners of war and expressed the
hope that the Japanese Government would likewise apply the
provisions of the convention to American prisoners of
war.18
Japan replied in February 1942 that although not bound by the
convention, it would apply “mutatis
mutandis provisions of that convention to American
prisoners of war in its power”.19
Despite this undertaking, which is somewhat vague, it is a
known fact that Japan did not observe provisions of the
convention. Members of the Doolittle squadron of aviators
who fell into Japanese hands after the raid on Japan on
April 18, 1942 were tried and some of them were executed
without any notice whatsoever to Switzerland, the protecting
power. The convention was constantly violated by Japan in
other respects throughout the period of military operations.
In these circumstances the United States was free to depart
from the undertaking to apply, with respect to Japan, the
provisions of the convention.
But aside from these considerations it is to be noted that
Article 60 of the convention relates to the trial of
“prisoners of war” and that General Yamashita is being tried
as a war criminal. There is a question as to whether he has
at any time occupied the status of a prisoner of war in the
true sense of that term. He surrendered subsequent to the
capitulation of Japan and after the Emperor had issued
instructions to the Commanders of all Japanese forces to
surrender unconditionally themselves and all forces under
their control. But even assuming that Yamashita was held as
a prisoner of war, as distinguished from a war criminal, and
assuming that provisions of the convention were still
operative as between the United States and Japan, both of
which it is believed would be rash assumptions, the fact
remains that failure of American authorities to give notice
of the trial would not vitiate the proceedings in as much as
the giving of notice is not a prerequisite to trial and has
no bearing upon its legality. Certainly it is not a matter
which can be availed of by the defendant. It relates to an
undertaking between the two Governments and any complaint of
failure to observe the undertaking should be considered, if
at all, on the political level. Were Japan in a position to
contend that she had been observing the convention under the
arrangement reached in 1941–1942, supra, she might complain that the United States
had violated the understanding, but she could not contend,
with reason, that because of such violation the trial should
as a matter of law be set aside.
[Page 981]
Attached are: (1) a copy of the Prisoners of War Convention
of 1929, (2) copies of the communications exchanged between
the United States and Japan in 1941–1942, and (3) a copy of
the Department of State Bulletin
dated July 22, 1945 on pages 125 and 126 of which are set
forth communications exchanged between the Department and
the Swiss Legation regarding representation by the latter of
Japanese interests in the United States.
