G.R. No.

L-2662

March 26, 1949

SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents. Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner. Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents. MORAN, C.J.: Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the prosecution of petitioner's case before the Military Commission and to permanently prohibit respondents from proceeding with the case of petitioners. In support of his case petitioner tenders the following principal arguments. First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law

an illegal order this commission is without jurisdiction to try herein petitioner." Second. That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines. Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the case. Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the of the nation. In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution. The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all our armed forces

as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war may remain pending which should be disposed of as in time of war. An importance incident to a conduct of war is the adoption of measure by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measure those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And in the language of a writer a military commission has jurisdiction so long as a technical state of war continues. This includes the period of an armistice or military occupation up to the effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar Association Journal June, 1944.) Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of Executive Order No. 68. Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): . . . The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during then Commonwealth because it is an offense against the same sovereign people. . . . By the same token war crimes committed against our people and our government while we were a Commonwealth are triable and punishable by our present Republic. Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national sovereignty. In the first place respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the organization of such military commission is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training. Secondly the appointment of the two American attorneys is not

violative of our nation sovereignty. It is only fair and proper that United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty it has not been by our government but by the United State Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials. Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country. The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not interfere with the due process of such Military commission. For all the foregoing the petition is denied with costs de oficio. Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

EREMES KOOKOORITCHKIN, petitioner, vs. THE SOLICITOR GENERAL, oppositor. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for appellant. L. D. Lockwood and Manuel O. Chan for appellee. PERFECTO, J.: In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied with supporting affidavits of two citizens, copy of a declaration of intention sworn in July, 1940, and proper notice of the hearing. The petition was finally set for hearing on December 18, 1941, but it was held on that date because the province was invaded by the Japanese forces on December 14, and the case remained pending until the records were destroyed during the military operations for liberation in March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence was presented on August 28 and September 30, 1947. On the same day resolution was issued granting the petition. Although appellant was represented at the hearing and crossexamined the witnesses for the petitioner, he did not file an opposition or presented any evidence. The lower court made the findings of fact in the following paragraphs of its resolution: Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of Commonwealth Act 473, as amended by Act 535. The records shows that in August, 1941, he filed his petition for naturalization supported by the affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of Camarines Sur. In the preceding year, in July, 1940 to be precise, he filed his declaration of intention to become a citizen of this country. Notice of the hearing was published as required by law. It was established at the hearing that the petitioner is a native-born Russian, having first seen the light of day on November 4, 1897 in the

old City of St. Petersburg, Russia. He grew up as a citizen of the defunct Imperial Russian Government under the Czars. World War I found him in the military service of this Government. In 1915 he volunteered for the Imperial Russian navy and was sent to the Navy Aviation School. He fought with the Allies in the Baltic Sea, was later transferred to the eastern front in Poland, and much later was sent as a navy flier to Asia Minor. In the latter part of the war, but before the Russian capitulation, he was transferred to the British Air Force under which he served for fourteen months. When the revolution broke out in Russia in 1917, he joined the White Russian Army at Vladivostok and fought against the Bolsheviks until 1922 when the White Russian Army was overwhelmed by the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea from Vladivostok to Shanghai and from this Chinese port he found his way to Manila, arriving at this port as a member of a group of White Russians under Admiral Stark in March, 1923. He stayed in Manila for about seven months, then moved to Olongapo, Zambales, where he resided for about a year, and from this place he went to Iriga, Camarines Sur, where he established his permanent residence since May, 1925. He has remained a resident of this municipality, except for a brief period from 1942 to July, 1945, when by reason of his underground activities he roamed mountains of Caramoan as a guerrilla officer. After liberation he returned to Iriga where again he resides up to the present time. The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has one son named Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at Legaspi, Albay, a school duly recognized by the Government. The applicant is shop superintendent of A. L. Ammen Transportation Company, with about eighty Filipino employees working under him. He receives an annual salary of P13,200 with free quarters and house allowance. He also owns stocks and bonds of this and other companies. The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with the Filipinos, attending parties, dances and other social functions with his wife. He has a good moral character and believes in the principles underlying the Philippine Constitution. He has never been accused of any crime. On the other

hand, he has always conducted himself in a proper and irreproachable manner during his entire period of residence in Camarines Sur, in his relations with the constituted authorities as well as with the community. Although he could have lived in ease by maintaining good relations with the enemy by reason of his being Russian-born during the years preceding the declaration of war by Russia against Japan, the applicant of his own volition chose to cast his lot with the guerrilla movement and fought the enemy in several encounters in the Province of Camarines Sur. He belonged to the guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of the forces of liberation he was attached to the American Army from April to June, 1945. Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the present Communist Government of Russia. He is, therefore, a stateless refugee in this country, belonging to no State, much less to the present Government of the land of his birth to which he is uncompromisingly opposed. He is not against organized government or affiliated with any association which upholds and teaches doctrine opposing all organized governments. He does not believe in the necessity or propriety of violence, personal assault or assassination for the success or predominance of his ideas. Neither is he a polygamist or a believer in the practice of polygamy. He is not suffering from any mental alienation or incurable contagious disease. Appellant assigns four errors in the appealed resolution. We will consider them separately. I Appellant claims that the lower court erred in not finding that the declaration of intention to become a Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization. The question calls for the application of the following provision of section 5 of the Revised Naturalization Law: No declaration shall be valid until entry for permanent residence has been established and a certificate showing the date, place and

manner of his arrival has been issued. Appellant alleges that no documentary or testimonial evidence was introduced to establish the fact that appellee had lawfully been admitted into the Philippines for permanent residence. In the reconstituted declaration (page 11, record on appeal) the following can be read: I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the attached certificate of arrival or landing certificate of residence. The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen were filed, had been lost or destroyed during the battle for the liberation of Manila, and the certificate alluded to has not been reconstituted. Appellant's contention that attachment of the certificate of arrival is essential to the validity of a declaration finds no support in the wordings of the law, as the above-quoted section 5 of Commonwealth Act no. 473 uses the words "has been issued. Appellee suggests that we would not consider the question here raised by appellant, the latter having failed to raise it in lower court and points out that there is testimonial evidence showing appellee's arrival March, 1923, and that he was lawfully admitted for permanent residence, and the testimony of petitioner has not been refuted. Appellee's alleges that the office of the President has certified that it is a matter of record that petitioner was one of the Russian refugees who entered the Philippines under the command of Admiral Stark, the facts regarding arrival of the latter fleet being a matter of common knowledge, widely publicized in the newspapers at the time, of which this Court may properly take judicial notice under section 5 of Rule 123. When the fleet entered the Philippine waters, it was met by a Governor General Wood who, later, took the matter up with the authorities in Washington in lengthy correspondence, and the 1,200 persons manning the fleet were allowed to land and to remain in the Philippines or proceed to other countries, except about 800 who were allowed to go to the United States and given free transportation on the naval transport "Merritt." The ships of the fleet were sold in the

Philippines. The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25 years, without having been molested by the authorities, who are presumed to have been regularly performing their duties and would have arrested petitioner if his residence is illegal, as rightly contended by appellee, can be taken as evidence that he is enjoying permanent residence legally. That a certificate of arrival has been issued is a fact that should be accepted upon the petitioner's undisputed statement in his declaration of July, 1940, that the certificate cannot be supposed that the receiving official would have accepted the declaration without the certificate mentioned therein as attached thereto. We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, failure to reconstitute the certificate of arrival notwithstanding. What an unreconstituted document intended to prove may be shown by other competent evidence. II The second assignment of error touches upon two questions, that the lower court erred (1) in not finding that appellee has not established a legal residence in the Philippines, and (2) in not finding that he cannot speak and write any of the principal Philippine languages. The first question has already been disposed of in the above discussion. Perusal of the testimonies on record leads to the conclusion that petitioner has shown legal residence in the Philippines for a continuous period of not less than ten years as required by section 2 of Commonwealth Act No. 473. As to the next question, appellant alleges that in the oral test at the hearing, it was demonstrated that petitioner has only a smattering of Bicol, the Filipino language that petitioner alleges to know, and he cannot speak it as he was not able to translate from English to Bicol questions asked by the court and the provincial fiscal, although, in the continuation of the hearing on September 30, 1947, "surprisingly enough, he succeeded answering correctly in Bicol the questions propounded by his counsel, however, he fumbled and failed to give the translation of such a common word as 'love' which the fiscal

asked of him. The lower court made the finding of fact that applicant speaks and writes English and Bicol and there seems to be no question about the competency of the judge who made the pronouncement, because he has shown by the appealed resolution and by his questions propounded to appellee, that he has command of both English and Bicol. The law has not set a specific standard of the principal Philippine languages. A great number of standards can be set. There are experts in English who say that Shakespeare has used in his works 15,000 different English words, and the King's Bible about 10,000, while about 5,000 are used by the better educated persons and about 3,000 by the average individual. While there may be persons ambitious enough to have a command of the about 600,000 words recorded in the Webster's International Dictionary, there are authorities who would reduce basic English to a few hundred words. Perhaps less than one hundred well selected words will be enough for the ordinary purposes of daily life. There is a reason to believe that the lower court's pronouncement is well taken considering the fact that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner joined the guerrilla in the Bicol region, took part in encounters and skirmishes against the Japanese, and remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee with his smattering of Bicol was able to get along with his Bicol comrades in the hazardous life of the resistance movement, we believe that his knowledge of the language satisfies the requirement of the law. But appellant contends that there is no piece of positive evidence to support petitioner's allegation that he can write too in the Bicol language. There, is, however, on record circumstantial evidence from which it can be concluded that petitioner ought to know also how to write Bicol. We know that Bicol, as all the important Philippine languages, uses the same alphabet used in English, and it is much easier to write Bicol than English, because it is phonetic. Vowels and consonants have in them single and not interchangeable phonetic values, while English words deviate very often from the basic sounds

of the alphabet. The ability to write cannot be denied to a person like petitioner, who has undergone the exacting technical training to be able to render services as flier in the Russian Naval Squadron in the Baltic Sea and in the British Air Forces during the first World War. The difference between the Cyrillic alphabet, as now used by Russians, and our Roman alphabet, cannot weigh much to deny petitioner the ability to use the latter. A person who has shown the command of English which can be seen in his testimony on record can easily make use of an alphabet of twenty or more letters universally used in this country where he has been residing continuously for 25 years. III Appellant contends that the lower court erred in finding appellee stateless and not a Russian citizen and in not finding that he has failed to establish that he is not disqualified for Philippine citizenship under section 4 (h) of the Revised Naturalization Law. It is contended that petitioner failed to show that under the laws of Russia, appellee has lost his Russian citizenship and failed to show that Russia grants to Filipinos the right to become a naturalized citizens or subjects thereof. The controversy centers on the question as to whether petitioner is a Russian citizen or is stateless. Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship. His testimony supports the lower court's pronouncement that petitioner is a stateless refugee in this country. Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject of the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars were overthrown in 1917 by the Bolshevists, and the petitioner disclaims allegiance or connection with the Soviet Government established after the overthrow of the Czarist Government. We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's testimony, besides being uncontradicted, is supported by the well-known fact that the ruthlessness of modern dictatorship has scattered throughout the world a large number of stateless refugees or displaced persons, without country and without

flag. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression, concentration camps and blood purges, and it is only natural that the not-so-fortunate ones who were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. Petitioner belongs to that group of stateless refugees. Knowing, as all cultured persons all over the world ought to know, the history, nature and character of the Soviet dictatorship, presently the greatest menace to humanity and civilization, it would be technically fastidious to require further evidence of petitioner's claim that he is stateless than his testimony that he owes no allegiance to the Russian Communist Government and, is because he has been at war with it, he fled from Russia to permanently reside in the Philippines. After finding in this country economic security in a remunerative job, establishing a family by marrying a Filipina with whom he has a son, and enjoying for 25 years the freedoms and blessings of our democratic way of life, and after showing his resolution to retain the happiness he found in our political system to the extent of refusing to claim Russian citizenship even to secure his release from the Japanese and of casting his lot with that of our people by joining the fortunes and misfortunes of our guerrillas, it would be beyond comprehension to support that the petitioner could feel any bond of attachment to the Soviet dictatorship. IV The fourth and last assignment of error need not be discussed, it being only a sequel of the other assignments and has necessarily been disposed of in their discussion. The appealed resolution is affirmed. Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.

G.R. No. L-129

December 19, 1945

TOMOYUKI YAMASHITA, petitioner, vs. WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific, respondent. Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner. Maj. Robert M. Kerr for respondent. Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

MORAN, C.J.: Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese Imperial Army in the Philippines, and now charged before an American Military Commission with the most monstrous crimes ever committed against the American and Filipino peoples, comes to this Court with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer, Commanding General of the United States Army Forces, Western Pacific. It is alleged therein that petitioner after his surrender became a prisoner of war of the United States of America but was later removed from such status and placed in confinement as an accused war criminal charged before an American Military Commission constituted by respondent Lieutenant General Styer; and he now asks that he be reinstated to his former status as prisoner of war, and that the Military Commission be prohibited from further trying him, upon the following grounds: (1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction; (2) That the Philippines cannot be considered as an occupied territory, and the Military Commission cannot exercise jurisdiction therein; (3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing trial against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1892, and therefore, the Military Commission has no jurisdiction to try the petitioner; (4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to be acting denied the petitioner a fair trial. We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge of petitioner from confinement but merely his restoration to his former status as a prisoner of war, to be interned, not confined. The relative difference as to the degree of confinement in such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of civil courts. Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military Commission is not made party respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order may be issued in these case proceedings requiring it to refrain from trying the petitioner. Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt of our civil courts to exercise jurisdiction over the United States Army before such period (state of war) expires, would be considered as a violation of this country's faith, which this Court should not be the last to keep and uphold." (Emphasis supplied) We have said this in a case where Filipino citizens were under confinement, and we can say no less in a case where the person confined is an enemy charged with the most heinous atrocities committed against the American and Filipino peoples. True that the rule was made applicable in time of war, and there is a conflict of opinion as to whether war has already terminated. War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incident of war may remain pending which should be disposed of as in time of war. "An important incident to a conduct of a war is the adoption of measure by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort to have violated the law of the war." (Ex parte Quirin, 317 US., 1; 63 Sup. Ct., 2.) Indeed, the power to create a Military Commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a Military

Commission "has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.) Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), and this applicable in time of war as well as the time of peace that this Court has no power to review upon habeas corpus the proceedings of a military or naval tribunal, an that, in such case, "the single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the petitioner discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.) Following this rule in the instant case, we find that the Military Commission has been validly constituted and it has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. The Commission has been validly constituted by Lieutenant General Styer duly issued by General Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in accordance in authority vested in him and with radio communication from the Joint Chiefs of Staff, as shown by Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the Rules of the Land Welfare a Military Commission for the trial and punishment of the war criminals must be designated by the belligerent. And the belligerent's representative in the present case is none other than the Commander in Chief of the United States Army in the Pacific. According to the Regulations Governing the Trial of the War Criminals in the Pacific, attached as Exhibit F to the petition, the "trial of persons, units and organizations accused as a war criminals will be the Military Commissions to be convened by or under the authority of the Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12 and 15 recognized the "Military Commission" appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of the war not ordinarily tried by court martial. (Ex parte Quirin, supra.) And this has always been the United States military practice at since the Mexican War of 1847 when General Winfield Scott took the position that, under the laws of war, a military commander has an implied power to appoint and convene a Military Commission. This is upon the theory that since the power to create a

Military Commission is an aspect of waging war, Military Commanders have that power unless expressly withdrawn from them. The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of the Rules of the Land Warfare, "the commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall." As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the United States said: From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status rights and duties and of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.) Petitioner is charged before the Military Commission sitting at Manila with having permitted members of his command "to commit brutal atrocities and other high crimes against the people of the United States and of its allies and dependencies, particularly the Philippines," crimes and atrocities which in the bills of particulars, are described as massacre and extermination of thousand and thousands of unarmed noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young girls, as well as

devastation and destruction of public, or private, and religious property for no other motive than pillage and hatred. These are offenses against the laws of the war as described in paragraph 347 of the Rules of Land Warfare. It is maintained, however, that, according to the Regulations Governing the Trial of War Criminals in the Pacific. "the Military Commission . . . shall have jurisdiction over all of Japan and other areas occupied by the armed forces commanded by the Commander in Chief, United States Army Forces, Pacific" (emphasis supplied), and the Philippines is not an occupied territory. The American Forces have occupied the Philippines for the purpose of liberating the Filipino people from the shackles of Japanese tyranny, and the creation of a Military Commission for the trial and punishment of Japanese war criminals is an incident of such war of liberation. It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was begun against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1929. But there is nothing in that Convention showing that notice is a prerequisite to the jurisdiction of Military Commissions appointed by victorious belligerent. Upon the other hand, the unconditional surrender of Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. It may be stated, furthermore, that Spain has severed her diplomatic relation of Japan because of atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to be the protecting power of Japan. And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military Commission in the admission of allegedly immaterial or hearsay evidence, cannot divest the commission of its jurisdiction and cannot be reviewed in a petition for the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326). For all foregoing, petition is hereby dismissed without costs.
lawphi1.net

Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, JJ., concur. Paras, J., concurs in the result.

The Paquete Habana - Exam Brief!175 U.S. 677 Keyed to Damrosch 5th Facts:!Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag were fishing off the Cuba coast. They were owned a Spanish subject that was born in Cuba and living in Havana. The vessels were commanded by a subject of Spain, also residing in Havana. Their cargo consisted of fresh fish, caught by their crew. The fish were kept alive to be sold alive. Until stopped by the blockading squadron they had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. Issues:!Whether a court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter? Analysis:!By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. In 1403 and 1406 Henry IV ordered that fisherman of foreign nations become under his special protection so that the fisherman in the course of their duty would not be hindered, interfered, or molested by any of his subjects. The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence. Several authorities of other nations and treaties prohibit the taking of any

fishing vessels as a prize of war. In addition, the United States allies in previous wars have also prohibited it. The court looked to these decisions to determine the current state of international law. Holding:!Yes Rule:!A court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter. Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Dissent or Concurrence:!Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting: The district court held these vessels and their cargoes liable because not satisfied that as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from seizure. This court holds otherwise, not because such exemption is to be found in any treaty, legislation, proclamation, or instruction granting it, but on the ground that the vessels were exempt by reason of an established rule of international law applicable to them, which it is the duty of the court to enforce.

Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-defence) Year of Decision: 1986 Court: ICJ NB: This blog post will discuss only those matters relating to the use of force and self-defence that was discussed in the Nicaragua decision. The decision also discussed the jurisdiction of the Court to hear this case, the rights of an absentee party (in this case the US), the provisions and violations of the Treaty of Friendship, the applicable law and the effect of the multilateral treaty reservation of the US made under Article 36(2) of the Statute of the ICJ and the liability of the US under International Humanitarian Law. Overview: The case involved military and paramilitary activities conducted by the US against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law. Facts of the Case: In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN began to encounter armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US initially supportive of the new government changed its attitude when, according to the US, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated US aid to Nicaragua and in September 1981, according to Nicaragua, the US decided to plan and undertake activities directed against Nicaragua. The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along

the border with Costa Rica, (see map of the region). Initial support to these groups fighting against the Nicaraguan Government (called contras) was covert. Later, the US officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting directly or indirectly military or paramilitary operations in Nicaragua). Nicaragua also alleged that the US is effectively in control of the contras, the US devised their strategy and directed their tactics and that they were paid for and directly controlled by US personal and some attacks were carried out by US military with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that US aircrafts flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population. Questions before the Court: 1. Did the US breach its customary international law obligation not to intervene in the affairs of another State when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua? 2. Did the US breach its customary international law obligation not to use force against another State when it directly attacked Nicaragua in 1983 1984 and when its activities in bullet point 1 above resulted in the use of force? 3. Can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective self-defence? 4. Did the US breach its customary international law obligation not to violate the sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above? 5. Did the US breach its customary international law obligations not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce when it

laid mines in the internal waters and the territorial sea of Nicaragua? ICJ decision: US violated CIL in relation to bullet points 2, 3, 4 and 5 above. The Court rejected the US justification of collective selfdefence and held that US violated the prohibition on the use of force. Relevant Findings of the Court: The US breached its customary international law obligation not to use force against another State: (1) when it directly attacked Nicaragua in 1983 1984; and (2) when its activities with the contra forces resulted in the threat or use of force. See paras 187 -201. The Court held that: 1. The prohibition on the use of force is a principle that can be found in Article 2(4) of the UN Charter and in customary international law (CIL). 2. Use of force can be: (1) most grave forms of the use of force (i.e. those that constitute an armed attack) and (2) less grave forms of use of force (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State when the acts referred to involve a threat or use of force). 3. The US violated the CIL prohibition on the use of force when it laid mines in Nicaraguan ports and attacked its ports, oil installations and a naval base. If however, the force was used in collective self- defence, then the US was justified in the use of force (see below on self-defence). 4. The US violated the CIL prohibition on the use of force when it assisted the contras by organizing or encouraging the organization of irregular forces and armed bands for incursion into the territory of another state and participating in acts of civil strifein another State and when these acts involved the threat or use of force. 5. The supply of funds to the contras does not violate the prohibition on the use of force. while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua the Court

considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua does not in itself amount to a use of force. (para 227) What is an armed attack? ! An armed attack includes (1) action by regular armed forces across an international border; and (2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein [the second point is taken from Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression]. ! Mere frontier incidents are not considered as an armed attack unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces. ! Assistance to rebels in the form of provision of weapons or logistical support does not constitute an armed attack it can be regarded as a threat or use of force, or an intervention in the interna1 or external affairs of other States (see para 195, 230). ! Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of force that amounts to an armed attack (para 211). US cannot justify the military and paramilitary activities that it undertook in and against Nicaragua as collective selfdefence. 1. CIL allows for exceptions to the prohibition on the use of force including the right of individual or collective self-defence. US asserted that the Charter itself acknowledges the existence of this CIL right when it talks of the inherent right of a State (para.193). 2. When a State claims that it used force in collective self-defence, the Court will look into two aspects : (1) whether the circumstances required for the exercise of self-defence existed and (2) whether the steps taken by the State, which was acting

in self-defence, corresponds to the requirements of international law (i.e. necessity and proportionality). 3. Several criteria must be met for a State to exercise the right of individual or collective self-defence: (1) A State must have been the victim of an armed attack; (2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place nor not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third States) own assessment]; and (3) in the case of collective self-defence the victim State must request for assistance (there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack); (4) the State does not, under CIL, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened but the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (see below). Para 200: At this point, the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be immediately reported to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a

procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (emphasis added)(See also paras 232 -236). 4. The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries which in turn would necessitate self-defence (paras 230 - 236) . The Court referred to statements made by El Salvador, Costa Rica, Honduras and the US before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the US in self-defence at the time when the US was allegedly acting in collective self-defence; and (2) the US did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. US cannot justify its use of force as collective self-defence. 5. The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence was also not fulfilled (para 237).

The US breached its CIL obligation not to intervene in the affairs of another State when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. 1. The principle of non- intervention means that every State has a right to conduct its affairs without outside interference I.e it forbids States or groups of States to intervene directly or

indirectly in internal or external affairs of other States. . This is a corollary of the principle of sovereign equality of States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205). 2. Nicaragua stated that the activities of the US was aimed at (1) overthrowing the government of Nicaragua and (2) substantially damaging the economy and weakening the political system so as to coerce the Government of Nicaragua to accept US political demands. The Court held: first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching. 3. The financial support, training, supply of weapons, intelligence and logistic support given by the US to the contras was a breach of the principle of non-interference. no such general right of intervention, in support of an opposition within another State, exists in contemporary international law, even if such a request for assistance is made by an opposition group of that State (see para 246 for more).

4. Interesting, however, the Court also held that providing humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law (para 242). 5. In the event one State intervenes in the affairs of another State, the second State has a right to intervene in a manner that is short of an armed attack (210). While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force. The US breached its customary international law obligation not to violate the sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea. The basic concept of State sovereignty in CIL is found in Article 2(1) of the UN Charter. State sovereignty extends to its internal waters, territorial sea and the air space above its territory. The US violated CIL when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorized overflights over Nicaraguan airspace by aircrafts belong to or under the control of the US.

ASYLUM CASE
Facts Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one military rebellion broke out in Peru which is organized and directed by the American Peoples Revolutionary Alliance led by Haya de la Torre. The rebellion was unsuccessful. The Peruvian Government issued a warrant for his arrest on criminal charges related to this political uprising. He fled to the Columbian embassy in Lima seeking for asylum from them. Columbia the requested permission from Peru for Haya de la Torres safe passage from the Columbian embassy, through Peru, goes to Columbia. Peru refused to give such permission. Columbia then brought this suit against Peru in the International Court of Justice, based on the agreement made by both named Act of Lima. These are the submissions made by the two parties: 1) The Columbian had pleaded for the court to declare that Columbia had properly granted asylum based on 2 submissions:a. They are competent to qualify the offence for the purpose of the said asylum. b. That Peru is bound to give the guarantees necessary for the departure of the Haya de la Torre, from the country, with due regard to the inviolability of his person. 2) Counter-claim by Peru is that for the court to declare that the grant of asylum made by the Columbian Ambassador to Haya de la Torre was made in violation of the Convention on Asylum. Argument Plaintiff (Columbian) arguments based on the Convention in force which are the Bolivarian Agreement 1911 on Extradition, the Havana Convention 1928 on Asylum, the Montevideo Convention 1933 on Political Asylum and American International Law. The Defendant (Peru) counter-claim relied on the rules of Havana Convention first, Haya de la Torre was accused, not a political offense but of a common crime and second, because the urgency which was required under the Havana Convention in order to justify asylum was absent in that case. Issue 1. Based on conventions, which in force between both countries, and in

general from American international law, whether Columbia competent, as the country granting asylum, to qualify the offence for the purpose of said asylum? 2. Was Peru bound to give the guarantees necessary for the departure of the refugees from the country, with due regard to the inviolability of his person? Decision 1) Columbia was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru. 2) Columbia was not entitled to claim that the Peru was bound to gives guarantees necessary for the departure of Haya de la Torre, with due regard to the inviolability of his person. 3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected, therefore it was not in accordance with Article I, Paragraph I of the Havana convention. 4) Peru Counter-claim that the grant of asylum by the Columbian government to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana Convention was approved by the court. Ratio Decidendi 1) The court reject the Columbian argument based on Bolivarian Agreement on the reason that the principle of International Law did not recognize any rule of unilateral and definitive qualification by the state granting diplomatic asylum. On the other hand, the Bolivarian Agreement laid down rules on extradition and it was not possible to deduce from them conclusions concerning diplomatic asylum as it was different in the meaning. The court also rejected the Havana Convention invoke by the Columbian as the convention did not recognize the right of unilateral qualification. And the third convention, Convention of Montevideo, had not been ratified by Peru and could not be invoked against it. As for the American international law, Columbia had failed to prove that it had constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial state. The fact submitted to the court disclosed too much contradiction and fluctuation,

shows that therein a usage peculiar to Latin America and accepted as law. 2) The court also rejected the Columbian claim based on Havana Convention that the Peru was bound to gives guarantees necessary for the departure of Haya de la Torre, on the reason that the convention only applicable if the territorial State demanded the departure of the refugee from its territory. It was only after such demand that the diplomatic Agent who granted asylum could require safe-conduct. 3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected on the reason that the refugee was charged for military rebellion, which was not a common crime as needed under the Havana Convention. 4) The court came into conclusion on Peru Counter-claim that the grant of asylum by the Columbian government to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana Convention was on the reason that the absent of element of urgency needed to justify the asylum, in order to protect the person from danger. In this case the danger that only faced by Haya de la Torre is legal preceding that will be imposed on him, not a deprivation of his right. The Havana Convention according to the court was not intended to protect a citizen who had plotted against the institutions of his country from regular legal proceedings. Asylum could only intervene against the action of justice in cases where arbitrary action was substituted for the rule of law. Rationale 1) Before a convention can be accepted to be used as the law under Article 38 of Statute of International Court of Justice, it must be ratified by the contesting state. - This has been shown by the reluctance of the court to used certain provision in the convention as had not been ratified by the party country. - Ie: see rules on Montevideo Convention. 2) The principle of International Law that are not recognizing the rules of unilateral treaty. 3) This decision also shows us that in order for the custom to be international custom it must be a general practice. - Ie: see rules on American International Law