CHAPTER 6
THE RULE OF LAW
Once the Communist Eighth Route Army had reached Manchuria in the late fall of 1945 and began to take city after city from the Chinese Nationalists who had replaced the Japanese in some places, and the Soviet Red Army in others, so-called people’s trials quickly followed. Justice was swift, the rituals of law rudimentary, if not primitive.
In some instances, Chinese newspapers would advertise for witnesses, asking anyone with a complaint against former officials of Manchukuo, the Japanese puppet state, to come forward. In Andong, on the northern border with Korea, a primary school was set up as a “people’s court.” Many of the charges were trivial, sometimes driven by the sour residue of long repressed resentments. A rickshaw puller accused a Japanese businessman of smashing his lantern without offering compensation. A young man remembered how his father was worked so hard as a coolie for a Japanese firm that he died from exhaustion. The accused, who usually had no recollection of their misdeeds, were lucky if they got off with very stiff fines.
There were far more serious accusations too. People’s justice proved to be just as quick in those cases. In December three hundred Japanese and Chinese functionaries in Andong Province were executed on the banks of the Yalu River. These were all men who had worked in the Manchukuo administration. There is an eyewitness account of what happened to two of them, the ex-governor of Andong, a Chinese named Cao, and his Japanese vice-governor, Watanabe.
Black hoods were placed over their heads, and Manchukuo decorations pinned to their chests—badges of honor transformed into badges of shame. They were then paraded through the main street of Andong in horse-drawn carts, with their heads bowed down in a show of contrition, holding up wooden signs daubed with crimson characters for all to see. One said “reactionary,” the other “puppet.” The people’s court was held in the open air, with large crowds trying to get a glimpse of the culprits. The people’s judge shouted out: “What shall we do with them?” “Kill! Kill!” the mob screamed back. And so it was decided. The men were led to the banks of the river, made to kneel, and shot from behind. (It is said that Watanabe’s ears were cut off first, but this is disputed.)1
What is interesting about this account is not the almost farcical nature of such summary trials, but the need for them. Why should the Chinese Communists have insisted on trials at all? Why not simply shoot the rascals? Clearly they wanted the executions to appear lawful. Establishing a form of legality is a necessary condition of legitimacy, even in a dictatorship, or perhaps especially in a dictatorship. But the concept of the law in show trials is entirely political. The trial is a ritual to demonstrate the authority of the Communist Party. The accused in Andong were charged not only with being instruments of the Japanese puppet state, but also, after liberation, of collaborating with the “reactionary” Chinese Nationalists, something they could hardly have avoided as the Nationalists took over Andong before the Communists arrived. Since the Communist Party supposedly represented the power of the people, the role of the people in this ceremonial affair was to shout out the verdict that was expected of them.
China was neither exotic nor unusual in this respect. Similar people’s courts sprung up wherever communists took control. The Hungarian writer Sándor Márai was in Budapest when the Hungarian “antifascists” appointed by the Soviet Red Army came to power in 1945. This was not yet a communist regime. Stalin decided that a gradual takeover would be better; he didn’t wish to startle the Western Allies too soon. Elections were held in November in which the communists did not do well. But the Soviets decided who would serve in the government anyway, and the communists, in the words of their leader Mátyás Rákosi, cut off their rivals “like slices of salami” until 1949, when the People’s Republic of Hungary finally came into being.
Budapest in 1945 had been badly damaged in the siege by Soviet and Romanian troops which had lasted for several months. The Royal Palace was a wreck, electricity was down, telephones didn’t work, bridges had collapsed into the Danube like wounded steel monsters. Food was scarce. Strangers would walk into people’s houses, expecting to be fed, or just to make trouble (to express their “hatred,” wrote Márai). Rich bourgeois homes were popular targets for popular anger. A new set of authorities had taken over the old torture chambers of the fascist Arrow Cross, and gangsters raced through the potholed streets in imported American cars. Márai noted a strangely feverish activity in town, which only later changed into a sullen listlessness. He wrote in his memoir that “dishonesty spread like the bubonic plague.” Law and justice, he said, “did not exist anywhere, but People’s Tribunals were already operating, and political executions afforded daily entertainment to the unemployed rabble, as in the time of Caligula in Rome.”2
Since 1920, in the absence of the king, Hungary had been under the reign of Admiral Miklós Horthy, officially His Serene Highness the Regent of the Kingdom of Hungary. This peculiar arrangement followed one year of Communist Party rule in 1919, under Béla Kun. White Terror followed Red Terror. Horthy, a very reactionary figure, though not exactly a fascist, had a lifelong horror of communism, which he, like many others, tended to associate with Jews, whom he disliked but not to the extent of wishing them all dead. He foolishly formed an alliance with Nazi Germany in the late 1930s, but balked when Hitler asked for his assistance in the Holocaust. Hungarian Jews were harassed but were shielded from mass murder until 1944, when the Germans decided to take things in hand and invaded the country. German armies were being decimated in the Soviet Union, with supply lines overstretched, materiel in short supply, and transportation routes cut off by enemy forces. But in a show of where true Nazi priorities lay, more than four hundred thousand Hungarian Jews were deported with ruthless efficiency. Most were killed in Auschwitz-Birkenau. Horthy was forced to step down and the fiercely anti-Semitic Arrow Cross leader Ferenc Szálasi ruled for 163 days with great brutality, offering Adolf Eichmann, officially in charge of the Final Solution in Budapest, all the help he needed.
The antifascist regime in 1945 made it clear that the entire Arrow Cross government would have to be tried, and execution was a foregone conclusion. A common factor in people’s justice was that the outcome of the trials was rarely in doubt. This was not just a matter for the people’s tribunal itself. The press too had to play its part. Béla Imrédy, a former banker turned Jew-baiter and prime minister in 1938, was described during his trial by a well-known journalist as “a spindly gnome, fumbling about in terror,” “a pitifully despicable figure,” “wriggling like a grey lizard under the weight of evidence.”3 It should be said that the Western press was often no less lurid when it came to prosecuting Nazis.
A Hungarian legal expert made it clear what the real purpose of the people’s trials was. It was not to try and punish the war criminals for “simple breaches of the law,” but “to retaliate against them for the political mistakes they made . . .”4 The courts consisted of Party people and trade unionists, led by professional judges. Sometimes the professionals, especially in the court of appeal, called the National Council of People’s Courts, were criticized for being too lenient. The communist paper Szabad Nép cried out that “the professional judges sitting in the Council have completely forgotten that they are the people’s judges. The people do not play around with documents; they do not look for mitigating circumstances in the case of war criminals but demand merciless retaliation against those who are responsible for their misery, suffering, and humiliation.”5
The past, too, was placed firmly under control of the new order, which, to repeat, was Soviet-controlled but not yet a communist regime. Judges held some of the defendants, such as László Bárdossy, prime minister in 1941, responsible for crushing “democracy” in 1919. What had been crushed was, in fact, Béla Kun’s communist dictatorship of the proletariat, which had its own forms of thuggishness and summary justice. It wasn’t just men, however, who were on trial, but the system they represented. László Budinszky, the minister of justice in the Arrow Cross government, was sentenced to death because, according to the National Council, “twenty-five years of an oppressive ruling system” had “brought the country to the brink of destruction.”6
In terms of numbers, Hungary was actually not among the harshest nations. More than 57,000 people were prosecuted for collaboration in Belgium.7 In the Netherlands 50,000 collaborators were sentenced.8 In Hungary it was closer to 27,000. In Greece, 48,956 people were held in prison by the end of 1945. But they were all leftists.
Greece is the best example of a country where both communists and anticommunists abused trials for political ends, occasionally even at the same time. People’s Courts were set up already in 1943, in areas liberated by the left-wing National People’s Liberation Army, the military arm of the National Liberation Front, controlled by communists. The courts were part of the effort to set up a socialist state in occupied Greece. People’s Courts, consisting of ELAS fighters and other “comrades”—farmers, truck drivers, and the like—dealt with criminals, war criminals, and collaborators.9 Sentences tended to be severe. Many people were executed, after a quick trial, or sometimes without any trial, by the guerrillas.
The most common crime in rural Greece appears to have been cattle thieving. In the village of Deskati, in central Greece, the guerrillas were too busy to deal with cattle thieves, however. Villagers were simply told that cattle thieving had to stop, since “we have no prisons or exiles to detain thieves. If one of you is caught stealing, he will just tell us what he prefers that we cut, his head or his feet. The decision is yours.”10 Apparently this was effective. The thieving, in Deskati at any rate, stopped. The People’s Court did deal with the curious case of a young man, who declared his love to one girl, but then proposed to marry another. The court gave him a stark choice, marry the first girl or be executed. He hesitated until the very last minute before deciding that he would rather live.
People’s Courts were merciless to collaborators. This meant policemen and gendarmes who worked for the Germans, promoters of fascism, Slavic-speakers in Macedonia who cooperated with the Bulgarian efforts to slice off a chunk of Greek territory, or class enemies who stood in the way of the revolution. When Greece was liberated from the Germans in the spring of 1944, there was a short period when it was run by a Government of National Unity, but even after that government established official courts to prosecute collaborators, People’s Courts continued to function in certain areas well into 1945. That Greece had two distinct legal systems, one official one with only limited authority, the other unofficial but with more territory under its control, shows how little consensus there was about political legitimacy. There was no Greek General de Gaulle to patch things over between communists and conservatives, between royalists and liberals. The scars of war were too raw, the rifts ran too deep.
Some efforts were made by the official government courts to try top wartime collaborators, such as the Greek prime ministers under the Germans, but the trials were slow, and frequently awkward. The quisling prime ministers claimed patriotism, as quislings always do, as their reason for staying in office. Indeed, they said, with some evidence, they had been told to stay in their posts to make the best of an appalling situation by the Greek government in exile. The head of the exiled government was none other than the first post-Liberation prime minister, Georgios Papandreou, whose son and grandson would later serve as prime ministers too.
More violent collaborators, such as the vicious Security Battalions, were hardly prosecuted at all. In fact, after the so-called Varkiza Agreement was signed in February 1945, compelling the left to lay down its arms in anticipation of a national referendum about the future government, the Greek world turned topsy-turvy. Former right-wing collaborators, who refused to hand in their weapons, terrorized everyone they suspected of left-wing sympathies. People were arrested, and sometimes shot, just for having been part of a People’s Court. This time the state within the state was run by rightist militias beyond the government’s control. Since the police were mostly on the side of the right, courts could not rely on them to arrest former collaborators. Instead, old partisans and their supporters were beaten up, tortured, and jailed by armed men who had worked for the Germans. For every former collaborator in prison in 1945, there were ten supporters of ELAS.
An ex-partisan named Panayiotis gave up his gun in February 1945. A few weeks later he was picked up by former members of a Security Battalion, taken to a nearby school, suspended upside down, beaten with rifle butts. They then whipped his bare feet to a pulp so that he had to crawl all the way to his house. Still, he mused from his later home in Australia, he had been lucky “to be the victim only of the first flood of Fascist revenge,” for he “missed the second flood when the Fascists sentenced thousands to death in their courts.”11 Liberation in Greece, then, was not the end of civil strife and the seemingly endless cycles of vengeance, but the beginning of much worse to come.
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ALMOST TWO AND A HALF thousand years before, Athens was the setting for Aeschylus’s great tragedy the Eumenides. It is all about a murder case. Orestes had killed his mother to avenge her slaying of his father. These foul deeds set off the furies of vengeance, the agents of an eye for an eye to see that justice was done. Pallas Athena, goddess of wisdom and the city’s patroness, convinced Orestes to submit to a trial. Only through rational argument in a court of law, she told him, could the furies of vengeance be pacified. But even rational argument in court does not always lead to a clear conclusion; the jury was tied, and so it was up to Athena’s divine judgment to let Orestes go. But the furies were indeed calmed by her decision:
And never more these walls within
Shall echo fierce sedition’s din,
Unslaked with blood and crime;
The thirsty dust shall never more
Suck up the darkly streaming gore
Of civic broils, shed out in wrath
And vengeance, crying death for death!12
Not much has changed since Athena watched over her great city. Ending the cycle of vengeance is still the best reason for conducting trials. But one problem with trials after a war, or the fall of a dictatorship, is that there are too many potential defendants. Stalin was perhaps indulging in one of his dark little jokes when he told Churchill at the Teheran Conference in 1943 that fifty thousand German officers should be shot out of hand. Churchill, apparently, was not amused and stomped out of the room in a fury. But Stalin had a point. Even if there is no such thing as collective guilt, there are far more guilty people than can possibly be tried. Yet justice must be seen to be done. This does not mean that individuals put on trial for crimes committed by thousands, and abetted by millions, are scapegoats. But there are cases where people are tried symbolically, as it were, because others cannot be put on trial, because they are too numerous, or out of reach, or protected for political reasons.
One of the worst Japanese war criminals was a medical doctor named Ishii Shiro, an arrogant loner who first made a name for himself as the inventor of a water filtering system. He once startled the Japanese emperor at a demonstration of his device by urinating into his filtered water and inviting His Majesty to take a sip. The emperor politely declined. Ishii was also an early and rather obsessive promoter of bacteriological and chemical warfare. In 1936 the Imperial Army gave him permission to build a vast secret facility near Harbin in Manchukuo, where he could experiment to his heart’s content. Not only did Ishii, and his able staff of Unit 731, including a microbiologist named Kitano Masaji, experiment with bubonic plague, cholera, and other diseases, but thousands of prisoners were used for anything that took the doctors’ fancy. The human guinea pigs, mostly Chinese, but also Russians and even a few American POWs, were known as “logs,” or “monkeys.” Some were exposed to freezing experiments, some were hung upside down to see how long it would take before they choked, some were cut open without anesthesia and had organs removed, and some were injected with lethal germs. Another specialty of Unit 731 was to infect large numbers of rats with deadly bacteria and drop them over Chinese cities together with thousands of fleas in porcelain bombs suspended from little parachutes.
The “water filtering facility” near Harbin was destroyed by the retreating Japanese, along with the remaining prisoners in the summer of 1945, just before the Soviet Red Army arrived. The ruins now contain a “patriotic museum” with waxworks of Ishii and his colleagues conducting live vivisections. Ishii, Kitano, and some others actually made it back to Japan. More junior doctors were captured by the Soviets, who put them on trial for war crimes. Even as General MacArthur promised to try Japanese war criminals (always excepting the emperor himself), Ishii quickly disappeared from sight. He managed to convince his interrogators, led by Major General Charles Willoughby, MacArthur’s “pet fascist,” that the data culled from his experiments in China would be of great interest to the U.S. Army. Willoughby was convinced that the human experiments, not as readily available to U.S. doctors, had produced vital information. There was considerable worry that the Soviet Union was ahead of the U.S. in this type of research, and, as a U.S. Army medical specialist later wrote in a memo to State Department officials, human experiments were better than animal experiments, and since “any war crimes trial would completely reveal such data to all nations, it is felt that such publicity must be avoided in the interest of defense and national security of the US.”13
Lieutenant General Ishii Shiro died peacefully in Tokyo in 1959. The commissioner of his funeral was his deputy and later successor at Unit 731, Lieutenant General Kitano Masaji. Kitano, an expert in blood experiments, went on to head Green Cross Corporation, the first commercial blood bank in Japan. There are few traces left by these men, except for the ruins of the prison labs near Harbin, and one curious monument found in a disused rat cellar in China, erected by Kitano in honor of the rodents he dissected for research purposes.
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THE FIRST WAR CRIME TRIAL in the Pacific War theater was that of General Yamashita Tomoyuki, also known (respectfully in Japan, fearfully elsewhere) as “the Tiger of Malaya.” General Yamashita actually spent very little time in Malaya, but he had earned his sobriquet by taking Singapore in February 1942 against a much superior force; thirty thousand Japanese against more than one hundred thousand British and Commonwealth troops. The humiliating scene of Yamashita facing Lieutenant General Arthur Percival, with the Japanese general demanding an immediate answer to his question whether Percival would surrender, “yes or no!”, can still be seen as a waxwork tableau in the amusement park on Singapore’s Sentosa Island.
The wartime prime minister, General Tojo, who disliked and distrusted Yamashita, perhaps because of the latter’s superior military skills, or perhaps because of Yamashita’s skepticism about Japan’s war with the Western powers, whisked him away from Southeast Asia and sidelined him in Manchukuo, where he had no chance to shine on any battlefield. Yamashita was dispatched back to the region only after Tojo lost power in 1944. He was handed the thankless task of defending the Philippines after it had become indefensible.
At his trial during the fall of 1945, Yamashita was accused of permitting one of the worst atrocities committed during World War II: the Massacre of Manila.
There was no dispute about the events. Trapped in Manila by advancing U.S. forces in February 1945, more than twenty thousand Japanese, mostly from the Imperial Japanese Navy, were ordered to fight to the death and to lay as much of the Philippine capital to waste as they could while they were at it. After plunging into the ample supplies of beer and rice wine put at their disposal, the troops went on an orgy of violence. Women of all ages were raped and murdered. Babies and children were smashed against walls or ripped apart with bayonets. Men were mutilated for sport and massacred. Hospitals were raided and patients burned alive. Houses and buildings were torched. And all the while, the city was being bombarded and shelled by U.S. tanks and howitzers while Japanese fought off American attacks using flamethrowers and bazookas. After one month of mayhem, Manila was a flaming ruin. The devastation was on a par with that of Warsaw, and up to one hundred thousand Filipinos were murdered in this extended bloody spree.
Manila had been General Douglas MacArthur’s stamping grounds before the war. His rooms at the Manila Hotel had been badly damaged in the carnage. He recorded his state of shock as he watched the attack on the hotel from a distance: “Suddenly the penthouse blazed into flame. They had fired it. I watched, with indescribable feelings, the destruction of my fine military library, my souvenirs, my personal belongings of a lifetime . . . I was tasting to the last acid dregs the bitterness of a devastated and beloved home.”14
For MacArthur, what happened in Manila in 1945, and what had happened there three years earlier when he had been driven out by the Japanese Imperial Army under General Homma Masaharu, was a personal affront. So the trials held against both Homma and Yamashita in Manila were rather personal too. Orders came from Washington to arrange for speedy trials, following decisions made by the Allies in June 1945 to prosecute war criminals. But they were to be held by military commissions under MacArthur’s command. The judges were appointed by MacArthur, and the procedures were managed by MacArthur. This left many people who were there with the distinct impression that these were not trials to still the fires of vengeance; they were a form of vengeance.
Someone had to pay for the heinous crimes in Manila, as well as other brutalities perpetrated under Japanese occupation: the Bataan Death March in April 1942, the starving of POWs, the destruction of Filipino villages and towns, the torture prisons under the Kempeitai. Since the collaborators in the Filipino elite were largely shielded from prosecution, and the most active Filipino resisters were being crushed in the name of anticommunism, a villain was badly needed to show Filipinos, who had suffered so much, that justice was still being done; a brutal face had to be matched to the nameless mass of killers. Someone had to hang.
Yamashita Tomoyuki certainly looked the part: a squat, bullnecked figure with narrow, myopic eyes, his was the cartoon image of the Japanese war criminal. Filipinos were encouraged to come and watch him being tried in the old High Commissioner’s residence. One old woman was so embittered by her wartime experiences that she carried rocks in her purse to throw at the monstrous Japanese general. And some American reporters did their best to condemn him before he was convicted. As the trial reporter for Yank put it nicely: “From the very beginning of the proceedings, you couldn’t find a sucker to bet two pesos to 200 on Yamashita’s acquittal.”15
Yank continued: “In the bullet-scarred High Commissioner’s office, where he once ruled as a conqueror, general Yamashita stood before a tribunal of five as a war criminal. He was receiving a fair trial, according to law—something the general hadn’t bothered to give his victims.”
This is almost entirely wrong. Yamashita had never been in the High Commissioner’s office before and certainly not as a conqueror. He arrived in the Philippines for the first time just before MacArthur waded ashore in the Leyte Gulf. Defending the country was by then a hopeless cause. Yamashita didn’t know the terrain. The chain of command was in tatters. His troops were scattered all over the Philippine islands. Communications had been largely cut. Food was no longer getting to most soldiers roaming in the mountains. Gasoline was barely available. Troops were badly trained and demoralized by hunger, exhaustion, and the tropical climate. Harassed by Filipino guerrillas and overwhelmed by superior U.S. forces, Yamashita had no chance to even see his troops, let alone lead them as a conqueror.
The Manila Massacre was at least partly the result of Japanese disarray. Yamashita’s headquarters were in the mountains almost two hundred miles from Manila. Knowing that he could not defend the capital, he ordered all Japanese troops to withdraw, including the marines who were nominally under his command. Manila would be an open city, with only sixteen hundred soldiers left behind to guard military supplies. But naval commanders dithered. Some wanted to fight to the last man. Others talked about a retreat but not before wrecking the harbor facilities. It wasn’t clear who commanded whom. Orders went unanswered. As so often happened in the Japanese armed forces, middle-ranking officers took things into their own hands and the most zealous prevailed. By the time a furious Yamashita insisted once again on their retreat, the soldiers and sailors were stuck in Manila with no way out but death.
Yamashita certainly didn’t face a fair trial. The judges were military desk officers whose knowledge of the law was as scanty as their understanding of battlefield conditions. One of them was so bored that he spent much of the time in deep slumber. MacArthur put all necessary resources at the disposal of the prosecution, whereas the defense lawyers were picked at the last possible minute. There was no time to investigate the more than sixty criminal charges, and even more were added just before the trial began. Rules of evidence and other procedures seemed to be arbitrary, if not rigged. In a “special proclamation” from MacArthur, the rules established by the Allies in June were restated: “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value. All purported admissions or statements of the accused are admissible.”16
Alas for Yamashita, this included dubious affidavits as well as statements by a shady couple of former collaborators who tried to cleanse their reputations by subjecting the court to wild allegations of the Japanese general’s alleged plans to exterminate the entire Filipino people. There was also a succession of traumatized witnesses who told their stories about horrific violence during the sacking of Manila. In the words of the Yank report: “Sobbing girl witnesses told of repeated attacks by Jap soldiers. Many of the girls said they were forced to submit at bayonet point . . . An extract of the testimony: ‘. . . A 12-year old was lying on a mat on the floor. She was covered with blood and the mat where she was lying was saturated with blood.’”
Again, few doubted the truth of such stories. The question was whether Yamashita could have known about them, and even then, could have done anything to stop the violence. At the Nuremberg trials, which were taking place at that same time, German generals were prosecuted only for war crimes which they ordered, abetted, or personally participated in. There was no proof of Yamashita’s having done any of these things. Indeed, his orders pointed in the opposite direction. And so he was charged with a crime that had not existed before, namely, of not being able to stop atrocities committed by troops over whom he had no control and who deliberately went against his orders. Yank stated with confidence that Yamashita had been treated fairly “according to law.” If so, it was no law that Yamashita, or any other military commander, had been even remotely aware of. On December 7, 1945, the anniversary of the Japanese attack on Pearl Harbor, Yamashita Tomoyuki was sentenced to death by hanging. He bowed to his judges and thanked the United States for giving him the benefit of “upright American officers and gentlemen as defense counsel.” Major Robert Kerr told a newspaper reporter that he had come to the Pacific expecting to shoot Japs on the beaches, not to hang them, but that it was all the same to him.17
An appeal for mercy was turned down by MacArthur. Yamashita’s lawyers tried, without much hope, to get the U.S. Supreme Court to declare the trial invalid. Their claim was that military commissions had no right to try former enemies in peacetime, and that the trial had not been conducted fairly. The Supreme Court decided not to contest the legitimacy of the military court, but two justices were highly critical of the trial. In the dissenting words of one of them, Justice Wiley B. Rutledge Jr.: “It is not in our tradition for anyone to be charged with crime which is defined after his conduct . . . Mass guilt we do not impute to individuals, perhaps in any case but certainly in none where the person is not charged or shown actively to have participated in or knowingly to have failed in taking action to prevent the wrongs done by others, having both the duty and the power to do so.”18
Yamashita declared that his conscience was clear. The evidence of the Manila Massacre, of which he claimed to have been ignorant when it occurred, had shocked him profoundly. He told his lawyers that it would have been hard for him to return to Japan anyway after leaving so many dead men behind. After hearing his sentence, he wrote a short poem:
The world I knew is now a shameful place
There will never come a better time
For me to die.19
Yamashita was hanged on February 23, 1946, at Los Ba?os, a picturesque hot spring resort south of Manila.
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GENERAL MACARTHUR HAD a peculiar and interesting justification for his implacability in the case of his Japanese adversary. Yamashita, in his view, had brought dishonor to the military profession.