sources of international law SHIGENORI KURODA v MAJ. GEN. RAFAEL JALANDONI, BRIG. GEN. CALIXTO DUQUE, COL.

MARGARITO TORALBA, COL. IRENEO BUENCONSEJO, COL. PEDRO TABUENA, MAJ. FEDERICO ARANAS, MELVILLE HUSSEY and ROBERT PORT 26 March 1949 Moran, ponente original petition for certiorari and prohibition [i assume] SHORT VERSION: Kuroda, formerly of the Japanese Imperial Army, was charged before a military commission created by Executive Order 68, to stand trial for war crimes. He contested the validity of the EO and the participation of the United States in the commission. The Supreme Court ruled for the validity of the EO. While the Philippines was not a signatory to the Hague or Geneva Conventions, there was a catch-all provision in the Constitution incorporating generally accepted principles of international law as part of Philippine law. FACTS: Shigenori Kuroda (petitioner) was a former lieutenant-general of the Japanese Imperial Army and commanding general of the Japanese Imperial Forces in the Philippines during a period covering 1943-4. o He was charged before a military commission convened by the Armed Forces of the Philippines Chief of Staff 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". o He was charged based on Executive Order No. 68, which established a National War Crimes Office and prescribed rules and regulations governing the trial of accused war criminals. This EO was promulgated on 19 July 1947. ISSUES: Was EO 68 illegal? YES Should attorneys Melville Hussey and Robert Port (respondents) be allowed to participate in the prosecution of Kurodas case in behalf of the United States? YES Should the case against Kuroda continue? YES REASONING: Kurodas arguments: o ONE: EO 68 violated not only the Constitution, but also local laws. The Philippines was neither a signatory nor adherent to the Hague Convention on Rules and Regulations covering Land Warfare, so Kuroda was charged of crimes not based on national or international law. Therefore, the commission trying him was without jurisdiction. o TWO: Hussey and Port werent authorized by the Philippine SC to practice law in the Philippines. Their participation was a diminution of the PHs personality as an independent state and their appointment as prosecutors was a violation of the Constitution. o THREE: Hussey and Port had no personality to prosecute as the United States was not a party in interest in the case. ON EO 68S VALIDITY SC: EO 68 was valid and constitutional. o Constitution Art. II 3 provided 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 principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, 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

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offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable therefor. THEREFORE: in promulgating and enforcing EO 68, the President acted according with generally accepted policies of international law, which were incorporated into the Constitution. Yamashita v Styer: EO 68 was correctly promulgated as an exercise of the Presidential power as Commander-In-Chief of all the armed forces.

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. 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. [citations omitted]

ON THE MILITARY COMMISSIONS JURISDICTION The military commission had jurisdiction to try Kuroda. o Even if the Philippines was not a signatory to the Hague or Geneva Conventions, crimes under which Kuroda was charged, their rules and regulations formed part of and were wholly based on generally accepted principles of international law. o In fact, the US and Japan, two belligerent nations, were signatories to the two Conventions. o The Constitutional provision was deliberately general and extensive in scope. It was not confined to recognizing rules and principles of international law found only in treaties to which the Philippine government was signatory. The crimes Kuroda was charged with were allegedly committed in the Philippines while it was under US sovereignty. Therefore the Philippines was equally bound with the US and Japan to the rights and obligations in the treaties between the two countries. These rights werent erased when the PH assumed full sovereignty. o Laurel v Misa: 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. o Therefore, war crimes committed against Filipinos and the Philippine government during the Commonwealth were triable and punishable by the present Republic. ON THE PARTICIPATION OF AMERICAN ATTORNEYS The military commission was a special military tribunal governed by a special law and not by the Rules of Court (which governed ordinary civil courts). o There was nothing in the EO that required counsel appearing before the commission to be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. o It was common in military tribunals that counsel for the parties were usually military personnel, neither attorneys nor possessing legal training. Their appointment didnt violate national sovereignty. o It was only fair and proper that the US, which wanted to vindicate crimes against its government and people in the tribunal, be allowed representation in a trial of those crimes. The relinquishment had in fact been made not by the Philippine government but by the US government. The US was a party-in-interest. o It was equally aggrieved by the crimes allegedly committed by Kuroda. RULING: petition denied DISSENT Perfecto, J. REASONING: Hussey and Port, as aliens and unauthorized by the SC to practice law, couldnt appear as prosecutors, as they would be practicing law against the law.

EO 68 was a legislative measure without the benefit of congressional enactment. o CONSTI TIME!!! or ADMIN TIME!!! if you prefer: the Executive branch cannot exercise legislative powers. o The EO established a National War Crimes Office. Power to establish government office = essentially legislative. o The EO vested upon military commissions jurisdiction to try all persons charged with war crimes. Power to define and allocate jurisdiction for the prosecution of persons accused of any crime = exclusively legislative. o The EO provided rules of procedure for the conduct of trial. Power to promulgate rules of procedure = legislative. No, Im kidding, its actually judicial. o It appropriated P7M for expenses of the National War Crimes Office. Power of the purse = legislative. o USURPATION! EVERYWHERE! Commonwealth Act Nos. 600 and 671 couldnt be validly invoked to justify EO 68. o These two laws were for the purpose of facing World War II. They werent meant to continue in effect after the surrender of Japan. EO 68 also violated due process and equal protection. #rbm