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Tokyo Trial

This entry contains information applicable to United States law only.

After World War II eleven of the Allied Powers (Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, the Soviet Union, the United Kingdom, and the United States) prosecuted twenty-eight of Japan's top military, political, and diplomatic leaders for an assortment of war crimes committed in Southeast Asia between 1928 and 1945. Known as the Tokyo trial for the city in which it took place, this legal proceeding stands along side the Nuremberg trials for its contribution to international law and the rules of war.

American involvement in World War II formally began on December 8, 1941, when the United States declared war on Japan, and formally ended on September 2, 1945, when the Japanese surrendered in Tokyo Bay aboard the USS Missouri. For more than a decade before the war, the Japanese military had been expanding its foothold on the Asiatic mainland. During the war itself, Japan invaded or attacked Burma, China, Indochina, the Philippines, Malaysia, Manchuria, Wake Island, Hong Kong, Singapore, and the Aleutians, committing an array of atrocities. The Tokyo trial was the Allies' effort to hold Japan responsible for its crimes during this period of military aggression.

The International Military Tribunal for the Far East (IMT) was established on January 19, 1946, by order of General Douglas MacArthur, the supreme commander of Allied Forces in the South Pacific. MacArthur appointed eleven judges to preside, one from each of the Allied countries participating in the proceeding. All decisions made by the IMT were by majority vote, with MacArthur retaining plenary power over appeals. Because the vanquished government of Japan consented to the jurisdiction of the IMT, the tribunal sidestepped some of the murkier legal issues confronting the judges at Nuremberg who had faced repeated challenges to their authority under international law.

Each of the participating Allied Powers was represented by a chief prosecutor and a support staff comprised of assistant prosecutors, investigators, and miscellaneous other personnel. The defendants were represented by over one hundred attorneys, three-quarters Japanese and one-quarter American, plus a support staff of their own. The prosecution began opening statements on May 3, 1946, and took 192 days to present its case. The defense opened its case on January 27, 1947, and finished its presentation 225 days later. The IMT delivered its judgment over a period of 4 days, concluding the trial on November 12, 1948. During 818 public sessions held by the IMT, 230 translators were employed, 419 witnesses gave testimony, 4,336 exhibits were introduced, and more than 53,000 pages of transcript were printed.

Although the IMT heard evidence regarding fifty-five counts of war crimes, most of the transgressions fell into one of three categories: crimes against peace, crimes against humanity, and conventional war crimes. Crimes against peace included the planning, initiating, and waging of "aggressive war," which was broadly defined as any hostile military act that violated the territorial boundaries or political independence of a sovereign nation. Crimes against humanity included the murder, persecution, and enslavement of civilian populations. Conventional war crimes included violations of the international rules and customs of warfare that have been recognized by civilized societies and govern hostilities between combatants, the behavior of occupying powers, and the treatment of prisoners of war (POWs).

The prosecution offered compelling evidence that the defendants had violated more than a hundred international treaties and committed countless war crimes over the previous twenty years. In particular, the evidence showed that when Japan invaded Nanking, China, in 1937 at least 20,000 women were raped by Japanese soldiers, and at least 100,000 civilians were slaughtered. Thousands of Chinese civilians were captured during the massacre and deported to Japanese labor camps where they were forced to work at gunpoint. Other evidence revealed that the Japanese army had brutally marched 50,000 U.S. POWs across the Bataan peninsula in 1942. Many of these prisoners were underfed, dehydrated, and malnourished, while some were tortured, shot, and buried alive in what became known as the "Bataan Death March." Additionally, prosecution witnesses gave testimony that U.S., Soviet, Filipino, and Chinese POWs had been used as subjects in barbaric scientific experiments performed at Japanese concentration camps throughout the war.

The IMT spent six months reaching judgment and drafting its 1,781-page opinion. Nine judges were persuaded by the prosecution's evidence, and two were not. The judges from France and India wrote separate dissenting opinions. Twenty-five defendants were found guilty of committing war crimes; seven of them were sentenced to death by hanging, sixteen to life imprisonment, one to a term of twenty years, and one to a term of seven years. Two defendants died before the proceedings ended, and one was declared incompetent to stand trial by reason of insanity.

The highest ranking official prosecuted by the Allies was Hideki Tojo, the prime minister of Japan during the attack on Pearl Harbor in Hawaii in 1941. He was found guilty of waging aggressive war and sentenced to death. Tojo's predecessor, Kuki Hirota, was prime minister during Japan's invasion of China in 1937. He was convicted of crimes against humanity and sentenced to death for negligently failing to stop the massacre at Nanking after learning about the terror and carnage in its early stages. Hirohito, the Japanese emperor during World War II, was spared from prosecution as a condition of Japan's surrender in 1945.

 
 
Wikipedia: International Military Tribunal for the Far East

The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trials, the Tokyo War Crimes Tribunal or simply as the Tribunal, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during World War II. The first refers to their joint conspiracy to start and wage the war, and the latter two refer to atrocities including the Nanking Massacre. War crimes charges against more junior personnel were dealt with separately, in other cities throughout the Asia-Pacific region.

The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.

Twenty-five Japanese military and political leaders were charged with Class A crimes, and more than 5,700 Japanese nationals were charged with Class B and C crimes, mostly over prisoner abuse. The crimes perpetrated by Japanese troops and authorities in the occupation of Korea and China, particularly Manchuria (Manchukuo), were not part of the proceeding. China held 13 tribunals of its own, resulting in 504 convictions and 149 executions.

The Japanese Emperor Hirohito, and all members of the imperial family such as Prince Asaka, were not prosecuted for any alleged involvement in any of the three categories of crimes. As many as 50 suspects, such as Nobusuke Kishi, who later became Prime Minister, and Yoshisuke Aikawa, head of the zaibatsu Nissan, and future leader of the Chuseiren, were charged but released without ever being brought to trial in 1947 and 1948.

President of the Tribunal, Sir William Webb, Justice of the High Court of Australia, presiding over the Tribunal in 1946.
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President of the Tribunal, Sir William Webb, Justice of the High Court of Australia, presiding over the Tribunal in 1946.

Creation of the court


The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. CIMTFE set down the laws and procedures by which the IMTFE trials were to be conducted, including the types of crimes. On 25 April 1946 in accordance with the provisions of Article 7 of the CIMTFE the original Rules of Procedure of the International Military Tribunal for the Far East with amendments were promulgated. [1][2][3]

A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Soviet Union, United Kingdom, Republic of China, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).

Prosecutors

Country Prosecutor
Chief Prosecutor (USA) Joseph Keenan
Australia Justice Alan Mansfield
Canada Brigadier Henry Nolan
Republic of China Xiang Zhejun (Hsiang Che-chun)
Provisional Government of the French Republic Robert L. Oneto
British India P. Govinda Menon, who later became a judge of the Madras High Court and later, in the Supreme Court of India.
Netherlands W.G. Frederick Borgerhoff-Mulder
New Zealand Brigadier Ronald Quilliam
Philippines Pedro Lopez
UK Arthur Comyns-Carr
USSR Minister S.A. Golunsky

Judges

Country Judge Remarks
Australia Sir William Webb Justice of the High Court of Australia; was the President of the Tribunal; delivered a separate opinion
Canada Edward Stuart McDougall Former Judge of the High Court of Canada King's Bench Appeal Side
Republic of China Major-General Mei Ju-ao Attorney and Member of the Legislature
Provisional Government of the French Republic Henri Bernard Avocat-General (Solicitor-General) at Bangui; Chief Prosecutor, First Military Tribunal in Paris; delivered a dissenting opinion
India Radhabinod Pal Lecturer, University of Calcutta Law College; Judge of the Calcutta High Court; delivered a dissenting opinion.
Netherlands Professor Bert Röling Professor of Law, Utrecht University; delivered a dissenting opinion
New Zealand Harvey Northcroft Judge Advocate General of New Zealand
Philippines Colonel Delfin Jaranilla Attorney General, High Court Member; delivered a separate opinion
UK Hon Lord Patrick Judge (Scottish), Senator of the College of Justice
USA John P. Higgins Chief Justice, Massachusetts Superior Court
Major-General Cramer Replaced Judge Higgins in July 1946
USSR Major-General I.M. Zarayanov Member, Military Collegium of the Supreme Court

Charges

Count Offense
1 As leaders, organisers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy to wage wars of aggression, and war or wars in violation of international law.
27 Waging unprovoked war against China.
29 Waging aggressive war against the United States.
31 Waging aggressive war against the British Commonwealth.
32 Waging aggressive war against the Netherlands.
33 Waging aggressive war against France (Indochina).
35,36 Waging aggressive war against the USSR.
54 Ordered, authorised, and permitted inhumane treatment of Prisoners of War (POWs) and others.
55 Deliberately and recklessly disregarded their duty to take adequate steps to prevent atrocities.

Specific Documents of Evidence

In April 2007, historian Yoshiaki Yoshimi and the Center for Research and Documentation on Japan's War Responsibility supplied specific documents about war crimes committed by the Japanese during the war. These exposed documents were used in 1948 sentences during the tribunal. The documents concern the issue of "Comfort Women" who were women forced to work in the brothels that serviced soldiers and other men during the years of World War II. Document No. 5330 precisely mentioned the forced use of women for sexual use during the war. Quotes from this document include: "The Tokeitai (Special Naval Police) had ordered to keep the brothels supplied with women; to this end they arrested women on the streets and after enforced medical examination placed them in the brothels." Other text in the document includes: "Women who had had relations with Japanese were forced into the brothels, which were surrounded by barbed wire. They were only allowed on the streets with special permission." [4]

Sentences

Wide view of the Tribunal, depicting the bench of judges in the background, and prisoners on trial in the right foreground.
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Wide view of the Tribunal, depicting the bench of judges in the background, and prisoners on trial in the right foreground.

There were 28 defendants tried, mostly military and political leaders. Two defendants (Matsuoka Yosuke and Nagano Osami) died of natural causes during the trial. Okawa Shumei had a nervous breakdown during the trial and was removed. One of the erratic things he did was, hitting the bald head of the former prime minister Hideki Tojo, shouting "Inder! Kommen Sie!" (Come, Indian!) in German, and the list goes on. Therefore, the presiding judge Sir William Webb (The President of the tribunal) concluded that he was mentally ill and dropped the case against him. From the beginning of the tribunal, he was saying that the court is a farce and not even worthy of calling it a legal court. Therefore, some people still believe that he was faking his madness in order to be released.

Seven others were sentenced to death by hanging for crimes against peace, war crimes and crimes against humanity. They were executed at Sugamo Prison in Ikebukuro on December 23, 1948:

Sixteen more were sentenced to life imprisonment. Three (Koiso, Shiratori, and Umezu) died in prison, while the other thirteen were paroled in 1955:

Two defendants received finite sentences. Foreign minister Togo Shigenori was sentenced to 20 years imprisonment and died in prison in 1949. Foreign minister Shigemitsu Mamoru was sentenced to 7 years but was paroled in 1950 and went on to serve as foreign minister again in Prime Minister Ichirō Hatoyama's cabinet.

Sadao Araki, minister of the Army, minister of Education and one of the main thinkers of the Showa regime.
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Sadao Araki, minister of the Army, minister of Education and one of the main thinkers of the Showa regime.

Subsidiary and related trials

According to Japanese tabulation, 5,700 Japanese individuals were indicted for Class B and Class C war crimes. Of this number, 984 were initially condemned to death; 475 received life sentences; 2,944 were given more limited prison terms; 1,018 were acquitted and 279 were never brought to trial or not sentenced. The number of death sentences by country is the following : Holland 236, Great Britain 223, Australia 153, China 149, USA 140 France 26 and Philippines 17. [5]

The Khabarovsk War Crime Trials held by the Soviets tried and found guilty some members of Japan's bacteriological and chemical warfare unit (Unit 731). However those who surrendered to the Americans were never brought to trial as General Douglas MacArthur, Supreme Commander of the Allied Powers, secretly granted immunity to the physicians of Unit 731 in exchange for providing America with their research on biological weapons.

In 1981, the Bulletin of the Atomic Scientists published an article by John W. Powell detailing Unit 731 experiments and germ warfare open-air tests on civilian populations. It was printed with a statement by judge B. V. A. Röling, the last surviving member of the Tokyo Tribunal. Röling wrote that "As one of the judges in the International Military Tribunal, it is a bitter experience for me to be informed now that centrally ordered Japanese war criminality of the most disgusting kind was kept secret from the Court by the U.S. government." [6]


Criticism

The IMTFE shared many of the same criticisms as the Nuremberg Trials, including the ex post facto nature of the IMTFE. The critics are divided between those who argue that the trial was the victor's justice and those for whom the trial was essentially a legal procedure to exonerate the imperial family from criminal responsibility.

It is also argued by some, such as Solis Horowitz, that IMTFE had an American bias, because unlike the Nuremberg Trials, there was only a single prosecution team, which was led by Joseph B. Keenan, an American, although the members of the tribunal represented eleven different Allied countries. [7]

The IMTFE had less official support than the Nuremberg Trials. For example, Chief Prosecutor Joe Keenan, a former US assistant attorney general, had a much lower position than Nuremberg's Robert H. Jackson, a justice of the Supreme Court of the United States.

Dissenting opinion and Victor's Justice

Justice Radhabinod Pal, the Indian justice at the IMTFE, argued that the exclusion of Western colonialism and the use of the atom bomb by the United States from the list of crimes, and judges from the vanquished nations on the bench, signified the "failure of the Tribunal to provide anything other than the opportunity for the victors to retaliate." [8] In this he was not alone among Indian jurists of the time, one prominent Calcutta barrister writing that the Tribunal was little more than "a sword in a wig".

Pal's objections were also substantive: he found that the entire prosecution case, that there was a conspiracy to commit an act of aggressive war, which would include the brutalization and subjugation of conquered nations, weak. About the Rape of Nanking in particular, he said, after acknowledging the brutality of the incident ( and that the "evidence was overwhelming" that "atrocities were perpetrated by the members of the Japanese armed forces against the civilian population... and prisoners of war"), that there was nothing to show that it was the "product of government policy", and thus that the officials of the Japanese government were directly responsible. Indeed, he said, there is "no evidence, testimonial or circumstantial, concomitant, prospectant, restrospectant, that would in any way lead to the inference that the government in any way permitted the commission of such offenses." [8]

In any case, he added, conspiracy to wage aggressive war was not illegal in 1937, or at any point since. [8]

A procedure to exonerate the imperial family

Hirohito and imperial stallion Sirayuki
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Hirohito and imperial stallion Sirayuki

Many historians criticize the work made by Douglas MacArthur and his staff to exonerate Emperor Showa and all members of the imperial family implicated in the war such as prince Chichibu, prince Takeda, prince Asaka, prince Higashikuni and prince Hiroyasu Fushimi [9].

As soon as 26 November 1945, MacArthur confirmed to admiral Mitsumasa Yonai that the emperor's abdication would not be necessary. [10] Before the war crimes trials actually convened, SCAP, the IPS and shôwa officials worked behind the scenes not only to prevent the imperial family being indicted, but also to slant the testimony of the defendants to ensure that no one implicated the Emperor. High officials in court circles and the shôwa government collaborated with allied GHQ in compiling lists of prospective war criminals, while the individuals arrested as Class A suspects and incarcerated in Sugamo prison solemnly vowed to protect their sovereign against any possible taint of war responsibility. [11]

According to Herbert Bix, Brigadier General Bonner Fellers "immediately on landing in Japan went to work to protect Hirohito from the role he had played during and at the end of the war" and "allowed the major criminal suspects to coordinate their stories so that the Emperor would be spared from indictment." [12]

Bix also argues that "MacArthur's truly extraordinary measures to save Hirohito from trial as a war criminal had a lasting and profoundly distorting impact on Japanese understanding of the lost war" and "months before the Tokyo tribunal commenced, MacArthur's highest subordinates were working to attribute ultimate responsibility for Pearl Harbor to Hideki Tojo." [13] According to the written report of Shûichi Mizota, the interpreter of admiral Mitsumasa Yonai, Fellers met the two men at his office on March 6 1946 and told Yonai that : "it would be most convenient if the Japanese side could prove to us that the Emperor is completely blameless. I think the forthcoming trials offer the best opportunity to do that. Tôjô, in particular, should be made to bear all responsibility at this trial. [14]

For John Dower, "This successful campaign to absolve the Emperor of war responsibility knew no bounds. Hirohito was not merely presented as being innocent of any formal acts that might make him culpable to indictment as a war criminal. He was turned into an almost saintly figure who did not even bear moral responsibility for the war", "With the full support of MacArthur's headquarters, the prosecution functioned, in effect, as a defense team for the emperor." [15] and "Even Japanese activists who endorse the ideals of the Nuremberg and Tokyo charters, and who have labored to document and publicize the atrocities of the shôwa regime, cannot defend the American decision to exonerate the emperor of war responsibility and then, in the chill of the Cold war, release and soon afterwards openly embrace accused right-winged war criminals like the later prime minister Nobusuke Kishi. [16]

Three judges wrote an obiter dictum about the criminal responsibility of Hirohito. Judge in chief Webb declared that "No ruler can commit the crime of launching aggressive war and then validly claim to be excused for doing so because his life would otherwise have been in danger...It will remain that the men who advised the commission of a crime, if it be one, are in no worse position than the man who directs the crime be committed." [17]

Judge Henri Bernard of France concluded that Japan's declaration of war "had a principal author who escaped all prosecution and of whom in any case the present Defendants could only be considered as accomplices."[18]

For judge B. V. A. Röling however, nothing objectable could be found in the Emperor's immunity and five defendants, Kido, Hata, Hirota, Shigemitsu and Tôgô should have been acquitted.

60th anniversary

In a survey of 3,000 Japanese conducted in 2006 by Asahi News as the 60th anniversary approached, 70% of those questioned were unaware of the details of the trials, a figure that rose to 90% for those in the 20-29 age group. Some 76% of the people polled, however, recognized a certain degree of aggression on Japan's part during the war, while only 7% believed it was a war strictly for self-defense. [1]

See also

References

Movie adaptation

  • In 2006, Chinese director Gao Qunshu made a movie about the trial [2], [3]

Books

  • Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Trials. Princeton, NJ: Princeton University Press, 2000.
  • Bix, Herbert. Hirohito and the Making of Modern Japan. New York: HarperCollins, 2000.
  • Brackman, Arnold C. The Other Nuremberg: the Untold Story of the Tokyo War Crimes Trial. New York: William Morrow and Company, 1987.
  • Dower, John W. Embracing Defeat: Japan in the Wake of World War II. New York: New Press, 1999.
  • Frank, Richard B. (1999). Downfall: The End of the Imperial Japanese Empire. New York: Penguin Books. 
  • Holmes, Linda Goetz (2001). Unjust Enrichment: How Japan's Companies Built Postwar Fortunes Using American POWs. Mechanicsburg, PA, USA: Stackpole Books. 
  • Horowitz, Solis. "The Tokyo Trial" International Conciliation 465 (Nov 1950), 473-584.
  • Lael, Richard L. (1982). The Yamashita Precedent: War Crimes and Command Responsibility. Wilmington, Del, USA: Scholarly Resources. 
  • Maga, Timothy P. (2001). Judgment at Tokyo: The Japanese War Crimes Trials. University Press of Kentucky. ISBN 0-8131-2177-9. 
  • Minear, Richard H. (1971). Victor's Justice: The Tokyo War Crimes Trial. Princeton, NJ, USA: Princeton University Press. 
  • Piccigallo, Philip R. (1979). The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951. Austin, Texas, USA: University of Texas Press. 
  • Rees, Laurence (2001). Horror in the East: Japan and the Atrocities of World War II. Boston: Da Capo Press. 
  • Sherman, Christine (2001). War Crimes: International Military Tribunal. Turner Publishing Company. ISBN 1563117282. 

Web

Notes

  1. ^ Charter of the International Military Tribunal for the Far East
  2. ^ Within documents relating to the IMTFE it is also referred to as the Charter
  3. ^ Rules of Procedure of the International Military Tribunal for the Far East 25 April 1946
  4. ^ http://search.japantimes.co.jp/cgi-bin/nn20070418a5.html
  5. ^ John Dower, Embracing defeat, 1999, p.447
  6. ^ Daniel Barenblatt, A plague upon humanity, Harper Collins, 2004, p.222.
  7. ^ Horowitz, Solis. (1950). "The Tokio Trial". International Conciliation 465 (Nov): 473-584. 
  8. ^ a b c "The Tokyo Judgment and the Rape of Nanking", by Timothy Brook, The Journal of Asian Studies, August 2001.
  9. ^ John Dower, Embracing defeat, W.W. Norton, 1999, Herbert Bix, Hirohito and the making of modern Japan, Perennial, 2001
  10. ^ Dower, ibid. p.323
  11. ^ Dower, ibid. p.325
  12. ^ Bix, ibid., p.583
  13. ^ Bix, ibid. p585
  14. ^ Kumao Toyoda, Sensô saiban yoroku, Taiseisha Kabushiki Kaisha, 1986, p.170-172, Bix, ibid. p.584.
  15. ^ Dower, ibid., p.326
  16. ^ Dower, ibid. p.562
  17. ^ Röling and Ruter, The Tokyo judgement : The International Military Tribunal for the Far East, 29 April 1946-12 November 1948, volume 1, p.478
  18. ^ ibid. p.496


International criminal law
Sources of international criminal law:
Customary international law - Peremptory norm - Hague Conventions - Geneva Conventions - Nuremberg Charter - Nuremberg Principles - United Nations Charter - Genocide Convention - Convention Against Torture - Rome Statute
Crimes against international law:
Crime against humanity - Crime against peace - Crime of apartheid - Genocide - Piracy - Slave trade - War crime - War of aggression
International courts:
Nuremberg Trials - International Military Tribunal for the Far East - Khabarovsk War Crime Trials - International Criminal Tribunal for the former Yugoslavia - International Criminal Tribunal for Rwanda - Special Court for Sierra Leone - Special Tribunal for Lebanon - International Criminal Court
History:
List of war crimes - List of convicted war criminals
Related concepts:
Command responsibility - Laws of war - Universal jurisdiction

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