“The extent to which power to prosecute violations of the laws of war shall be exercised before peace is declared rests, not with courts, but with the political branch of the government, and may itself be governed by terms of an armistice or a treaty of peace.”[679]
The importance of the Yamashita decision is apparent. The International Military Tribunal was established by the London Agreement, 8 August 1945, with its Charter annexed thereto. On entirely similar principles the Charter of the International Military Tribunal, or other tribunals or commissions, for the trial of major war criminals in the Far East was proclaimed on 19 January 1946. These tribunals or commissions of similar principles were all established in accordance with the Berlin Agreement of 2 August 1945, which defined the meaning of the unconditional surrender of the armed forces of the Axis Powers, and declared that the Allied Powers intended to punish captured war criminals of the European Axis Powers. All such commissions or tribunals are deemed to exercise military powers and therefore are described as “Military Tribunals.” This includes the tribunals created under the provisions of Control Council Law No. 10 and Ordinance 7.
The judges of these Tribunals set up under Law No. 10 and Ordinance 7 are appointed by the War Department, by the acts of the Secretary of War, by the President of the United States as Commander-in-Chief of the Armed Forces, and by the Commanding General of the American Zone of Occupation in Germany. These judges take an oath to faithfully perform the task thus assigned to them to the best of their ability.
The Supreme Court of the United States had previously applied the rule announced in the Yamashita case in the case of Quirin and six others (317 U. S. 1). The court declared that:
“The ‘law of war’ includes that part of the law of nations which prescribes for the conduct of war the status, rights, and duties of enemy nations as well as of enemy individuals.
“Under the ‘law of war’ lawful combatants are subject to capture and detention as prisoners of war by opposing military forces and unlawful combatants are likewise subject to capture and detention but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”
This authority is expressly conferred by article 15 of the Articles of War enacted by Congress on 4 June 1920.
It may be here again observed that international law is an unwritten law. There has never been an international legislative authority. The law of nations is founded upon various international rules and customs, which gradually obtain universal recognition and thus become international law. Likewise the law of war is built upon treaties and upon the usages, customs, and practices of warfare by civilized nations, which gradually obtain universal recognition, and also become established by the general principles of justice as applied by jurists and military courts, tribunals, or commissions. And as held by the IMT:
“The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.”[680]
After the unconditional surrender, the Allied Powers have obtained the actual custody of many of the leaders of the German Government, and the German armies, and many of those who were active participants in nameless atrocities against prisoners of war, other persons alleged in the indictment, and civilians of invaded countries, and the power to try such Axis war criminals must be conceded. This power to try these crimes could have been exercised as an entirely military one, but such a method would not accord with Anglo-Saxon or United States ideology. It has been planned to conduct orderly trials, and fair trials, in accordance with the American concepts of due process, giving the accused the benefit of indictment, notice, counsel of their own choosing, witnesses in their behalf, proof beyond a reasonable doubt, and judgment by experienced jurists who are under the obligations of a solemn oath to render even and exact justice. Surely this is giving to the accused rights which they denied to their helpless victims.