INTERNATIONAL LAW IS WHATEVER WE DECIDE IT IS:

Homma's tribunal, then, was an anomaly. In Manila, a victorious army was trying the army it had vanquished. As the Supreme Allied Commander of the Pacific Theater, Douglas MacArthur was responsible for selecting the venue, the defense, the prosecution, the jury, and the rules of evidence in the trial of a man who had beaten him on the battlefield.

Homma had been indicted on 48 counts of violating the international rules of war, but during this first meeting with his lawyers the general said he was pleading "not guilty" to all of them. As the commander of the 14th Imperial Army he was "morally responsible," but he said he neither knew about nor condoned--let alone ordered--any of the crimes for which he was now being charged. Of all the charges, he seemed to understand that those associated with the Bataan Death March would be the hardest to defend against. And yet Homma appeared to have only a vague notion of what this incident was supposed to have been. He said the very first time he'd heard the term was shortly before being taken into American custody, when several reporters asked him about his role in the atrocity.

Against their expectations, Pelz and his colleagues took an almost immediate liking to the general. In his diary, Pelz wrote that Homma was "charming" and a man of "obviously high character."

It was an odd twist of fate that General Homma should have been assigned to attack the American-held Philippines in the first place. He had been openly pro-Western before the war, a self-described Anglophile who had lived for years as a military attaché in Oxford and London, and he was widely known as the most Europeanized of all the Japanese generals.

The more Homma talked about his life, the more captivated Pelz became by this surprising man. The general seemed to have traveled everywhere and known nearly everyone of consequence. He had been at the coronation of King George VI, had been to Palestine and Afghanistan, and had lived for years in India. He'd met Gandhi, Churchill, and Mussolini. During one of his several trips across the United States, he had been led to the top of the newly built Empire State Building by Mayor Fiorello La Guardia.

Homma had already laid out many of the arguments for his own defense. Pelz saw in Homma's pensive round face a resolve to fight the judgment of history. Writing of this first meeting in his diary, Pelz said the general "was obviously nervous and eager. He looked like a tired old grandfather who had girded himself for a last battle." At the same time, Homma seemed to recognize that this battle was probably unwinnable. He wrote in his journal, morosely: "Justice is not applicable to the defeated. They will start the trial on the assumption that I am guilty... . There is no hope at all that I'll be saved. There is no possibility. At night I feel dizzy from despair."

Today Robert Pelz is 88 years old. Three years ago I met him at his law offices on Park Avenue in Manhattan, where he was a senior partner in the firm of Loeb & Loeb, focusing primarily on trusts and corporate matters. He is a dapper man with a sardonic wit and black eyebrows that arch and squirm like furry caterpillars above his thick glasses. He lives in the New York suburb of Purchase, in Westchester County, and plays golf regularly. He has a taste for fine Honduran cigars, and when he is smoking, he can look strikingly like Groucho Marx. By his office desk he kept a framed photograph of Masaharu Homma from the days of the trial, the image signed by the general in a florid hand.

Pelz picked up the photograph and studied it for a moment. "Funny to say, but Homma was a nice man, a gentleman."

We went around the corner to one of Pelz's favorite lunch spots, the Four Seasons, and over his usual dry martini he talked about the general and the sensational war-crimes trial that had launched his career nearly 60 years earlier. He was 27 then, the son of a Brooklyn banker hard hit by the Depression. Pelz was barely a lawyer then--he had only recently passed the New York bar--but somehow he'd ended up on Homma's defense team, an impressionable young lieutenant handed what would be, in many ways, the most fascinating case of his career. Of the five lawyers who represented the general, Robert Pelz is the sole survivor. "You caught me just in the nick of time, before my memory goes," he told me with a wry smile.

Pelz recalled the charged atmosphere in Manila. "The war hysteria had not ended. 'The Beast of Bataan'--it was all over the newspapers." The trial was also overshadowed by an unmistakable sense of personal vendetta. Although Douglas MacArthur was not there--he was ensconced in Tokyo, running the American occupation--his powerful and often grandiose persona was vividly felt in the courtroom and indeed everywhere in Manila, the city he had long called his home. Four years after the fact, the fall of Bataan remained a torment to MacArthur. It had been the largest surrender in American history with the exception of Appomattox. By the time his men laid down their arms in the spring of 1942, MacArthur had been safely evacuated to Australia to rebuild the Army, uttering his famous line "I shall return." He had returned, and in a sense, he was still fighting General Homma.

In 1945 Pelz already held a jaundiced view of MacArthur, whom he called "the Great I Am," and his opinion hasn't changed in 60 years. "A conceited ass," he told me, "a fine general, and a terrible man."

For Homma's lawyers, it was not enough to show that Homma had no knowledge of the war crimes in question. His trial would turn on the slippery concept of "command responsibility." As the commander in the field, the court asserted, Homma was liable for crimes of commission and omission; even if he was technically innocent, he should have known what was happening and done something to stop it. No enemy of an American army had ever been tried in a capital case under so sweeping a premise.

Certainly it was not a concept that American armies have ever applied to themselves. (To raise a modern analogy, by the interpretation of command responsibility asserted in the Homma trial, Gen. Tommy Franks could be held directly responsible for the abuses that occurred at Baghdad's Abu Ghraib Prison and the more than 30 homicides that have reportedly occurred among Afghani and Iraqi prisoners while in U.S. custody.)

Pelz spent the better part of two months with Masaharu Homma, meeting with him nearly every day, and like all his colleagues on the defense team, he grew close to the general. Immediately following the trial, he escorted Homma's distraught wife, Fujiko, back to Tokyo and was a guest in the general's home on the outskirts of the ruined city. He met Homma's family and friends and got a sense of his broad and often surprising world. Over the years, he would maintain a correspondence with the Homma family.

In time Pelz came to regard Homma as a complicated, ambiguous, and thoroughly ill-starred man who had not received anything like a fair trial. The seemingly clear-cut case of the "Beast of Bataan" pointed up the enormous difficulties that can arise when the U.S. Army ignores American traditions of due process and unilaterally arrogates to itself the right to try--and condemn--an adversary.

What's more, Homma proved a thoroughly unsatisfactory villain. Here was a figure out of Shakespearean tragedy, an aesthete fighting a war he did not believe in, for a totalitarian regime he detested, and yet, in the end, having to answer with his life for that regime's savagery.

Masaharu Homma came from a military tradition. He was the son of wealthy landowners, and his rise to prominence had been controversial and erratic, marred by his liaisons with beautiful but socially undesirable women. Among his various posts, he had served as head of the Army Propaganda Department in the mid-1930s, when he befriended Japan's foremost writers, painters, and dramatists. His colleagues viewed him as fiercely intelligent, highly principled, and vaguely effeminate. He had a habit of composing verse during the heat of battle. Within the 14th Imperial Army he was widely known as the Poet General.

People close to Homma thought him temperamentally unsuited for the demands of his chosen profession. Friends told his Japanese biographer that they hated to go to movies with Homma because he would often "put his handkerchief to his face and cry endlessly." Masahiko Homma, one of his sons, remembered that his father once tore down a sharply pointed bamboo fence at the family house because he was suddenly seized with the notion that it "looked cruel."

Several years ago, while writing a book about survivors of the Bataan Death March, I went to meet Masahiko Homma at the general's birthplace, Sado Island, off the coast of Honshu. This is a magical realm dotted with temples and crumbling shrines. The people of Sado speak a dialect that is said to be closer in cadence and intonation to ancient Japanese, and the island's folktales and No rituals preserve customs that have largely disappeared on the mainland.

General Homma remains a hero here. After all, he is the only Japanese general who ever decisively defeated an American army. Masahiko Homma still lives in the general's elegant wooden house, which was built in 1881 and is set on a tangled green hilltop in the village of Hatano. On the morning I arrived, I could see a misty panorama of rice paddies stretching to the sea, an impressive sweep of terraced land that has been in the Homma family for hundreds of years.

Masahiko Homma looks a lot like his father: the same air of quiet erudition, the same round face and penetrating gaze. A taut, owlish man well into his eighties, Masahiko graciously entertained me for several days. Pouring endless cups of green tea, he and his wife showed me the general's letters and photographs, his medals, his Imperial Army sword.

Like his father, like every Japanese man of his generation, Masahiko Homma was also a soldier in the Imperial Army. In 1943 his unit was captured by Russian troops in the Kuril Islands, north of Japan, and shipped to the Soviet Far East to slave in Siberian work camps. More than 60,000 Japanese soldiers died in captivity. Homma remained a Soviet prisoner in Siberia for five years before being released to go home to Sado.

It was only then, as an ex-POW returning to American-occupied Japan and still recovering from an ordeal of unimaginable mistreatment, that he learned the bitter irony of his family's fate: His own father had been tried by the United States for the crime of mistreating POWs. 

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