The Tokyo Trial and War Crimes in Asia [1st ed.] 978-981-10-7403-5, 978-981-10-7404-2

Table of contents :
Front Matter ....Pages i-xxix
The Establishment of the International Military Tribunal for the Far East and Its Jurisdiction (Mei Ju-ao)....Pages 1-38
Charter and Organization of the International Military Tribunal for the Far East (Mei Ju-ao)....Pages 39-118
Arrest and Prosecution of Japanese Major War Criminals (Mei Ju-ao)....Pages 119-216
Trial Proceedings of the International Military Tribunal for the Far East (Mei Ju-ao)....Pages 217-272

Citation preview

Foreword by Mei Xiaokan and Mei Xiao’ao

THE TOKYO TRIAL AND WAR CRIMES IN ASIA MEI JU-AO

The Tokyo Trial and War Crimes in Asia

Mei Ju-ao

The Tokyo Trial and War Crimes in Asia

Mei Ju-ao Translated by Cao Yan, Zhan Jixu, Xu Tianlun

ISBN 978-981-10-7403-5    ISBN 978-981-10-7404-2 (eBook) https://doi.org/10.1007/978-981-10-7404-2 The print edition is not for sale in China Mainland. Customers from China Mainland please order the print book from: Shanghai Jiao Tong University Press. ISBN of the China Mainland edition: 978-731-3150-80-6 Library of Congress Control Number: 2017964270 Based on a translation from the Chinese language edition: 东京审判亲历记 by Mei, Ju-ao Copyright © Shanghai Jiao Tong University Press, All Rights Reserved 2018 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: The National Archives and Records Administration. This Palgrave Macmillan imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-­01/04 Gateway East, Singapore 189721, Singapore

An Old Preface to International Military Tribunal for the Far East (I)

Dr. Mei Ju-ao passed away for years. My memory of him awoke when Mei Xiao’ao, his son, came to me with his book, The International Military Tribunal for the Far East (unfinished), and asked me to write a prologue for it. I am pleased to do so both for the reading public and out of my own interest. Although this book remains unfinished, it is still of great significance because it introduces the establishment and development of the principles concerning crimes of war after World War II. Implementation of these principles throughout the Tokyo Trial further clarified the condemnation and punishment of aggressive wars. Like the Nuremberg Trial, the Tokyo Trial not only prosecuted conventional war crimes that went against the laws and customs of war as provided for in traditional international law, but also defined crimes against peace and crimes against humanity, and went further to elaborate in great detail the concept of “conspiracy” in aggression. While the four chapters completed by Dr. Mei put more emphasis on the facts and procedures of the Tokyo Trial, this book does contain a general explanation in its Chap. 1 as of the legal basis for punishing the Japanese Class-A war criminals. Of course, a general explanation may not replace a penetrating legal analysis, but it can help the readers perceive the starting point and the direction of the Tokyo Trial, especially as one can take a reference to the text of the Tribunal’s final judgment. This is why I say that it is still of great significance although unfinished. Another aspect for which importance should be attached to Dr. Mei’s book is that it reveals a large amount of information on the Tokyo Trial that outsiders do not have access to, which includes the process of organizing the v

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Tribunal and the coordinative relations among its various departments, the details about the determination of the list of Class-A war criminals and their arrest and interrogation, the seat arrangement of the bench and its internal working system, the organization, duties and working procedures of the prosecution and the defense, the participation of American defence counsels and the significance thereof, and so forth. It is a big pity, however, that the final stage of the Trial, that is, the process of convicting and sentencing the defendants, especially the war criminals responsible for the invasion of China, is not reflected in these four chapters. Dr. Mei may have planned to cover this part in his subsequent chapters, which would no doubt be a fascinating story. At the time of the Trial, the KMT government lacked correct comprehension and estimation. They thought since the fact of Japan’s invasion of China was undisputable, the Trial must be no more than a formality, with the war criminals punished accordingly, without the victim countries having to provide much evidence. This being a misunderstanding already, to their greater surprise, the United States sent a troop of lawyers to defend the accused, in addition to the fact that seven of the eleven judges came from common law countries, which caused imbalance between the prosecution and the defence in favour of the accused. Although the Tokyo Charter stipulated that “The Tribunal shall not be bound by technical rules of evidence”, the Tribunal basically adopted the common law procedural rules. Pressured by this situation, China had to on one hand object to the mechanical application of highly technical rules of evidence, and on the other hand to race against time, searching for evidence in the greatest possibility, including relevant telegrams archived in Japan’s Ministry of War. These evidences were presented at the final stage of counter-examination of the defendants and their witnesses, so as to further substantiate the proof of their crimes in China. It paid off finally. All the major war criminals responsible for the war of aggression against China, such as Kenji Doihara, Seishiro Itagaki, Iwane Matsui, Akira Muto and Koki Hirota, were all duly convicted and sentenced to death, with their crimes made well known to the world. As to its practical meaning, China has adopted an opening-up policy since the third plenary session of the Eleventh Central Committee of the Communist Party of China, and the number of foreign-related legal cases have increased dramatically, most of which are taking place abroad. “To know both yourself and your enemy”, we need to learn more about litigation procedures of other countries, especially those of common law countries, for which we are short of materials at present. In Chap. 4 of this book, Dr. Mei elaborated on the trial procedures under the common law

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system and their applications in practice. Despite any differences between the Tokyo Trial as an international criminal trial and the foreign-related cases we are handling, mostly civil and commercial ones before domestic courts in foreign countries, many procedural rules, and rules of evidence in particular, are equally applicable for the trials in those domestic courts, whether criminal or civil and commercial in nature. Dr. Mei’s book will not only enlighten our research on procedural law in general, but has provided urgently-needed references for dealing with foreign-related cases today. Dr. Mei and I met in Chongqing during the anti-Japanese war. In early 1946, I visited the United States and Britain, conducting a field survey on their judicial systems and practices. When I heard that Dr. Mei would act as a judge in the Tokyo Tribunal, I was very happy about this excellent choice. In early 1947, I was invited to join the Chinese prosecution team in Tokyo. While working in different positions, both of us went through the tortuous process of the Tokyo Trial. It has been 13 years since Dr. Mei passed away. And other Chinese who worked for the Trial are now scattered in various places, except for Professors E Lvgong and Wu Xueyi who have also passed away. Mr. Xiang Zhejun, then Chinese prosecutor, is 95 years old and now confined to bed. Mr. Liu Zijian teaches at Princeton University, Mr. Gui Gongchuo at Taiwan University, and Messrs. Qiu Shaoheng, Yang Shoulin, Gao Wenbin, Zhou Xiqing, and Zhang Peide at different universities in Beijing or Shanghai, for years and years as hard-­ working as they were in the past. Part of Mr. Qiu’s job relates to China’s legal system. Mei Xiao’ao’s visit has reminded me of the events over 40 years ago, which are so vivid in my mind as if they had happened yesterday. To take the opportunity of writing this prologue, I express my sincere hope that these old colleagues of mine stay healthy, and continue to contribute to China’s prosperity, and to the world peace and human progress till our last breath. How I wish we could see each other again, recollect the past together and supplement this unfinished writing for Dr. Mei! August 1986

Ni Zhengyu

[Ni Zhengyu (1906–2003), joined the Tokyo Trial in 1946–1948 and prosecuted Kenji Doihara, Seishiro Itagaki, Iwane Matsui and other Class-A Japanese war criminals. He was appointed as an associate fellow with the Institut de Droit International in 1991. He passed away in 2003 at the age of 97.]

An Old Preface to International Military Tribunal for the Far East (II)

Dr. Mei Ju-ao, my dear friend, has passed away for more than ten years. Now, his posthumous work International Military Tribunal for the Far East is published and made known to all, which is a blessing for the legal circle in China. Dr. Mei dedicated his whole life to the law. He studied law in early years and, at the age of twenty-four, earned his J.D. from the University of Chicago. After returning to China, he engaged in legal education and took part in legislative work. In 1946, as the Chinese judge, he participated in the trial of major Japanese war criminals in the International Military Tribunal for the Far East in Tokyo, which lasted for three years. On the eve of the founding of new China, the KMT government appointed him as Minister of Justice, but he resolutely refused to assume office, and took a personal risk to return to Beijing from Hong Kong. After that, he served as a legal adviser to the Ministry of Foreign Affairs until his death. During this period, he attended many international conferences as an expert in law and diplomacy. Dr. Mei made a great deal of contributions to law in his life, while his work in the International Military Tribunal for the Far East constituted one of the most important ones. The trial of war criminals, as pointed out by Dr. Mei, “is an important event in international life after the Second World War and a pioneering undertaking in human history.” Learning a lesson from the failed attempt after World War I and in order to succeed this time, the major allies during World War II repeatedly affirmed the principle of punishing war criminals in several agreements. Thus, two international military tribunals were set up after the war, in Nuremberg, Europe and Tokyo, the Far East, for the ix

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trial of war criminals. The two tribunals successfully completed their tasks in about one year and over two years respectively, which was a great victory. From the perspective of international law, war crimes and war criminals are new concepts established through the Nuremberg and Tokyo trials. Their establishment demonstrates a new development of international law, especially the law of war. For a long time, there has been a distinction between just wars and unjust wars in international law, while in modern times this distinction is expressed as the difference between wars of aggression and wars against aggression. Although, in the strict sense, rules of international law concerning such distinction have not yet been well formed, condemning wars of aggression has long become part of the legal consciousness of mankind and part of the new content of international law. The punishment of war crimes and war criminals is derived from the principle of differentiating wars of aggression and wars against aggression and the principle of condemning wars of aggression, which, in turn, promotes the development of such principles so that their status in international law has been confirmed. As such, the two trials of war criminals following World War II, i.e., the trials in Nuremberg and Tokyo, marks indelible achievements in the history of development of international law. It is very meaningful for Dr. Mei to write down his personal experience of participation in the trial of war criminals in the International Military Tribunal for the Far East. He started to write this book in 1962. Unfortunately, once the “Cultural Revolution” broke out, his writing plan was brutally interrupted. Before his death in 1973, he no longer had the chance to continue writing. Therefore, this book represents an unfinished draft with only four chapters. However, despite being unfinished, the four chapters have discussed many important issues such as the establishment of the Tribunal and its jurisdiction, the Charter and organization of the Tribunal, the arrest and prosecution of major Japanese war criminals, the trial procedures of the Tribunal, and so forth. This book is rich in materials and deep in analysis. It is a valuable book and can serve as an important reference book for the study of international law and international politics. Books about the International Military Tribunal for the Far East and the trials of war criminals which bear as great significance as this one are rare even in the world. As a jurist, it was a glorious and arduous task for Dr. Mei to participate in the trial of international war criminals. With great efforts and after overcoming tremendous difficulties—lack of attention and support from the

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KMT government, delay and obstruction by the international reactionary forces, etc.—he finally succeeded in making the International Military Tribunal for the Far East pass a judgment against the major Japanese war criminals that was basically consistent with the requirements of justice. This was very much commendable. Dr. Mei Ju-ao and I became friends after 1949. Just a few days after he returned to Beijing, we attended together the inaugural meeting of the Chinese People’s Institute of Foreign Affairs. At that meeting, Premier Zhou Enlai praised his work and pointed out that “he has done a great thing for the people and won honour for the country”, which was a best appraisal of one important work Dr. Mei had undertaken in his life. May 25, 1986

Wang Tieya

[Wang Tieya (1913–2003), outstanding jurist of international law in modern China, professor at Peking University, and at Beijing Institute of Politics and Law. He also served as director of the Institute of International Law at Peking University. In 1987, he was elected Academician of the Academy of International Law. He passed away in Beijing on January 12, 2003 at the age of 90.]

In Memory of Our Father (Foreword)

Thanks to the efforts the Tokyo Trial Research Center and Shanghai Jiao Tong University Press, My Personal Experience at the Tokyo Trial is to be published, which is of great significance not only to our family but also to the country. It will undoubtedly promote an in-depth study of the Tokyo Trial, while expressing our lasting memory of our beloved father Mr. Mei Ju-ao.

I Our late father Mei Ju-ao, Ya Xuan (courtesy name), was born on November 7, 1904  in Zhuguqiao Mei Village in Nanchang, Jiangxi Province. Compared with provinces like Hunan, Guangzhou, Jiangsu and Zhejiang, Jiang accepted new things slowly. However, our grandfather, a clear-minded, knowledgeable and enlightened gentry, decided to send his eldest son, our father, to the Exemplary Primary School of Jiangxi Province, a school of the modern type which was rarely seen and not highly praised then and there. Under firm support of our grandfather, our father, who was only 12 years old, was admitted to Tsinghua School in Beijing in 1916. With no connections, being far away from home and even unable to speak the official language (Mandarin) well, the difficulties he encountered in studying at Tsinghua were really not small. Students had to strictly follow a semi military timetable and to take an active part in western style physical exercises. No subject could be treated carelessly. Otherwise, one would fail to go up to the next grade or run the risk of being expelled from school. Many foreign teachers taught in English and xiii

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most of the students had a good command of English. But our father knew little of the language, which made it almost impossible for him to understand the lectures. What should he do? He was determined to learn from scratch and catch up with others. Then, every day at the break of dawn, there would be two young students by the lotus pond on Tsinghua campus. Sometimes they mumbled; sometimes they asked and answered questions to each other; sometimes they recited texts individually. Gradually, they became more fluent, and their exercises became more sophisticated. That was our father and our granduncle, Mei Yangchun, studying English together. Mei Yangchun was only four years older than our father and was admitted to Tsinghua School from Jiangxi Province in the same year. Working day and night, their English improved rapidly, which helped them to make progress in other subjects. During the eight years, their teachers and schoolmates looked at them with completely new eyes because of their excellent academic records. Later on, Mei Yangchun became a famous engineer, presiding over the design and construction of important bridges such as Nanjing Yangtze River Bridge. Our father’s vision was increasingly open and he developed wider interests in his advanced years at Tsinghua School. He served as chief editor of the Tsinghua School Magazine, and organized a progressive group named “Chao Tao” together with some other students including Shi Huang, Ji Chaoding, Xu Yongying, who were early members of the Communist Party of China. Shi Huang died young as a martyr. Ji Chaoding and Xu Yongying engaged in revolutionary work ever since and served as important leaders in the 1950s and 1960s. In 1924, our father went to study in the United States. He studied at Stanford University and University of Chicago Law School, where he received his J.D. degree at the end of 1928. Living abroad, he had always been concerned about the destiny of his country. In response to the call for the Northern Expedition to “overthrow the governance of the Northern warlords” by the National Revolutionary Army, he joined Shi Huang, Ji Chaoding, Xu Yongying and some other Chinese students in the United States in initiating the Research Institute of Dr. Sun Yat-sen’s Thoughts, to actively promote revolutionary ideas among Chinese students studying there and beyond. In 1929, after visiting European cities including Paris, Berlin, London and Moscow, he returned to China, following an absence of nearly 5 years.

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II In the 16 years from his graduation to assuming the position of judge in the international court, he taught courses in civil law, criminal law, common law, international law and politics at Shanxi University, Nankai University and Wuhan University successively. He also served as a part-­ time professor at Fudan University, Central School of Politics, and Judge Training Institute of the Ministry of Justice. From 1934 onwards, he became a member of the Legislative Council of the KMT government, participated in its legislative work and served as acting chairman of its foreign affairs committee. At the same time, he worked as deputy director of Sun Yat-sen Institute for the Advancement of Culture and Education and chief editor of Collection of Current Affairs (a semimonthly journal), writing, translating and editing a significant volume of articles on law, foreign affairs and international politics. His writings in this period involved common law, civil law, Chinese and western legal thoughts, and China’s constitution and criminal law, for example, A Research on the Anglo-Saxon System of Law, The Napoleonic Code and Its Influence, The History and Organization of Soviet Revolutionary Courts, The History, Schools and Trends of Modern Law, The Rule of Law in China’s Old Legal System, Criticism of the Constitutional Guarantee Section of the Draft Constitution, and Comments on the Amendment to the Criminal Code. A wide horizon, great variety of topics, emphasis on both theory and practice, and rich research findings, these could characterize his academic career at that time. His long-standing lecturing, investigation, reading and writing laid a solid foundation for his legal theory and practice, which prepared him for his position as an international court judge in Tokyo. Based on his perspective as a scholar of law, he had pointed out that under a political system of KMT’s “one-party dictatorship”, “the party is above all else. Each government act is based on the party’s principles and assumes responsibility solely for the party. It does not make a contract with its people and has no obligations to the people. In other words, the party only has rights over the people, not obligations.” (Political Tutelage and Provisional Constitution) As to the fact that the law was used as a tool for the powerful and the rule of law could not be implemented, he prompted a sharp question, “What had destroyed people’s liberty and trampled on people’s rights? The law or the extralegal forces of government, the

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­ ilitary and violence?” (Comments on the Revised Initial Draft of the m Constitution) In addition, he was much critical of the legal education of the time, perhaps out of his observations from teaching. Legal science and law should be seriously treated, “however, law in China has become the most shallow and boring subject”, and increasingly the teaching of law was reduced to “fiddling around”. The teacher taught for money, the students learned for a diploma, therefore “the society often regards law as a tool for making a living or playing tricks, not as an academic subject or science. The reasons why China’s rule of law cannot be achieved and the cause of law is despised may vary, but the corruption in legal education is one of the leading ones.” (A Discussion on the Textbooks and References for Common Law Courses) The above examples are but the tip of the iceberg of his ideas on the science of law, which may still have an enlightening significance today. (For the quoted articles, please refer to A Collection of Mei Ju-ao’s Essays on Law, China University of Political Science and Law Press, 2007.) In our father’s time, land was shattered and devastated, and people lived in griefs. As a man of letters, when he thought of his parents, families and friends being displaced by the Japanese invasion, Chinese troops fighting in a bloody war, his fellow countrymen struggling under Japan’s occupation, whilst some government officials profiteering from our nation’s calamity, he was gloomy like the fog surrounding the wartime capital Chongqing (a mountain city known for its thick fog). On the other hand, he was impressed by Mr. Ma Yinchu’s brilliant analysis of China’s wartime economy and the insightful comments published by Xinhua Daily and Ta Kung Pao. However grim the reality was, our father’s ideals and his faith in justice and fairness never faded. All he needed was an opportunity.

III Together with the peace-loving people all over the world, the Chinese people have finally triumphed in the anti-fascist war through extremely severe struggles and at very high cost. After the war, the international community set up military tribunals in Nuremberg, Germany and Tokyo, Japan, where those major responsible persons of Germany and Japan were tried respectively. In February 1946, the GHQ appointed nine judges (later revised to eleven) of the International Military Tribunal for the Far East (the “Tokyo Trial”) on the nomination of the Allied Powers. As

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r­ ecommended by the people concerned, our father was appointed to the solemn trial seat on behalf of China. From March 1946 to the end of 1948, regarding the achievements and life of our father as a judge of the Tokyo Trial, the anecdotes mostly circulated include “a sword given by compatriots as a present”, “a dispute over seating arrangements”, “insistence on the death penalty”, “making an oath by the sea”, and so forth. In the second chapter of The International Military Tribunal for the Far East (unfinished) enclosed in this book, our father presented in greater detail the dispute over seating arrangements prior to the trial and revealed its importance for the maintenance of national interests and dignity. The clue to the heated debate on measurement of penalty could be seen in The Tokyo Trial Correspondence, which was firstly made known in The Tokyo Trial Manuscripts of Mei Ru’ao—“after a long discussion, a heated argument … and the complex and odd process, it is hard to explain all in just a few words. Besides, it is also improper for me to make any disclosure here”. It is a great pity that our father failed to complete the writing of The International Military Tribunal for the Far East because of the “Cultural Revolution”. As a result, later generations will not be able to know the details of the discussion on the measurement of penalty, which were sworn confidential by the judges at that time. The diaries of more than fifty days were also included in this book, which started from our father’s setting out to Tokyo to the end of the first few days of the court session. He had the habit of keeping a diary. In the end of the diary, he wrote a line—“from (May 14, 1946), to see in another notebook”, which other notebook vanished without a trace during the “Cultural Revolution”. From the short remainder of his diary, we can also be affected by his feelings then and there. Having received the systematic legal training, he made a clear distinction between the function of the judges and that of the prosecutors under the common law system. He was familiar with the judicial principles such as presumed innocence, equality between the defense and the prosecution, neutrality of the judges, benefit of doubt for the defendants, etc. Seeing the Chinese prosecutor Hsiang Che-chun collecting evidence and drafting the indictment day and night, he could not even give him a hand. Moreover, he also had to avoid arousing any suspicion and explain to his fellow countrymen the relationship between a judge and a prosecutor, which made all sorts of feelings well up in his mind. In fact, the Tokyo Trial was both a legal occasion and a political and diplomatic occasion. Naturally, it cannot be equated with an ordinary

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court. The interests of different countries varied as the world pattern changed, which would definitely affect the Tokyo Trial. At the same time, there were disputes such as the one between “substantive justice” and “procedural justice”. Whether it was the problem of “bias of the judge” or the argument on “abolition of death penalty”, the general principles laid out in the textbook and some of the views in the academic discussions should not be used as criteria for appraising the Tokyo Trial, a particular one under special circumstances. While working on the upholding of justice in Tokyo, our father never stopped observing and reflecting on the Japanese society, neither did he stop worrying about and blessing the destiny of his motherland. He was keenly aware that the post-war Japanese economy was not as bad as it had been propagated, that is, they might have “made a poor mouth”. In terms of national mental outlook and health, Japanese people were stronger than Chinese people. He wrote in his diary: “I wonder why the General Headquarters of Douglas MacArthur was so considerate of Japanese people for food panic, and why they made meticulous plans for them. Such a defeated country should really be regarded as ‘God’s favoured one’. As compared to my victorious country in great difficulty and misery, I cannot but sigh for our inferiority”. (May 2, 1946) “However, we should be vigilant while being lenient … What I am most concerned about is whether his (MacArthur’s) policy is detrimental to the national interests or hindering the development of my country—this problem has been hovering in my mind all day today.” (April 12, 1946) Although our father received Western education, affection for his country and homeland as a traditional Chinese intellectual were deeply rooted in his mind. “Those who are in foreign countries feel most painful to their own country’s failure to live up to their expectations.” (April 9, 1946) “‘There is no better way to stop evil speaking than self-cultivation’, China has to win credit for its people.” (April 26, 1946) “All the judges sent by countries are experienced and prestigious, so I have to work extremely conscientiously and sincerely, never be sloppy.” (April 10, 1946) and “I shall be vigilant! I shall be solemn! For the opportunity I can sit at the bench today to punish these culprits was built on the flesh and blood of millions and millions of my compatriots.” (May 3, 1946) Taking an overview of our father’s diary, you can find that “to win credit for” and “to be solemn” are the recurring words. In his telegram to the Minister of Foreign Affairs on 24 April 1948, he wrote: “It is my duty to strive with all my might to win the victory of this unprecedented international war of law and justice.” Our father’s sense of

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mission and his vision of the overall situation stood vividly revealed on the paper. Therefore, it is obvious to see that our father contributed heavily to the more or less satisfactory results achieved in the Tokyo Trial.

IV At the time when the work of the Tokyo Trial came to an end, the regime of China was in the process of being changed. Our father refused to assume the position of “State Councilor and Minister of Justice”, and refused to go to Taiwan for a living. Passing through Hong Kong, he arrived in Beijing to serve as an adviser to the Ministry of Foreign Affairs of the People’s Republic of China, with a commission document signed by Zhou Enlai, premier and then foreign minister of PRC. At the beginning of returning to the mainland, our father lived in peace with liberal wages and benefits, and was highly esteemed in professional work. On the one hand, he was very joyful, humming Beijing opera in the spacious courtyard and sketching cartoons on the frosting windows. He taught his daughter singing nursery rhymes in his hometown dialect, and bought toy swords for his son. On the other hand, he could not help but be nervous, as it was unavoidable to face political campaigns one after another as well as to report one’s ideology, transform the world view and learn Russian. Luckily though, the Ministry of Foreign Affairs was a bit different from other government organs or institutions after all. The “local climate” there was still somewhat pleasant as it was directly led by Zhou Enlai, Chen Yi and other senior leaders, with most colleagues having higher moral qualities. Even against the backdrop of the faculty adjustment with sociology and political science being abolished and the “overall Soviet-Unionization” of law, the senior experts of the Ministry of Foreign Affairs were still able to carry out researches on certain issues in international law and international politics, and could give consideration to academic theories while serving the immediate need of reality. By the time when the “Cultural Revolution” approached, Zhou Gengsheng, Liu Zerong and other seniors had published academic treaties, with our father’s International Military Tribunal For The Far East completed in half, and New Concept of War Crimes, On Tani Hisao, Matsui Iwane and the Nanking Massacre and some other papers issued. Despite the unfair treatment in the anti-rightist movement from 1957 to 1958, our father stayed patriotic as always, making serious and conscientious self-­examination, and in the meantime having research works coming out constantly.

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However, when the “Cultural Revolution” suddenly broke out, the Ministry of Foreign Affairs could not be spared and the relatively pleasant “local climate” no longer existed. Our father was labeled as “reactionary academic authority” so that the materials accumulated for writing his book was all confiscated, including notes, cards, clippings, and diaries, never to know their whereabouts afterwards. The writing of International Military Tribunal for the Far East was impossible to continue. In addition, apart from labor reform under surveillance, he had to spend a lot of time and energy in writing those “investigation materials” and “self-criticizing reports”. His health deteriorated sharply as the shock of the news came in continuous crowds—one old friend committed suicide, another former colleague was beaten to death, and so forth. Sadly, he did not make it to see the end of the “Cultural Revolution”, but passed away on April 23, 1973, at the age of only 68. Like many intellectuals who take responsibilities for society at large, our father had not stopped thinking and struggling despite his own awkward position in the last years of his life. For some who took the name of “revolutionary rebellion” to hurt the public interest and exerted dirty tricks to damage the national reputation, such as setting fire to the British Office of the Chargé d’Affaires and seizing powers of the ministry authority, he resolutely submitted a written statement to a higher authority regardless of his personal safety, and suggested inhibiting, investigating and not trusting those whose greedy desire for power expanded endlessly. In response to the charges such as “reactionary academic authority”, “opposing Sino-Japanese friendship”, “beautifying US-Japanese reactionaries” and “hoping for restoration of the old regime”, he cautiously defended himself by saying “I am nothing but a broken outdated little dictionary”, “I have no special skills, not even a decent work written…”, “As is known to all, I was the most earnest one to reveal the ambitious collusion of the US and Japan to resurrect militarism” and “I was a principal offender wanted by the Kuomintang government. To tell a joke, should the restoration of the old regime take place, I am afraid that I would be killed by them earlier than you young comrades!” Today, of all our father’s remarks full of significance, the one most frequently quoted was from the paper On Tani Hisao, Matsui Iwane and the Nanking Massacre: “I am not a revanchist. Neither do I intend to ascribe the debt of blood owed to us by the Japanese imperialists to the Japanese people. I believe, however, that to forget the suffering of the past is to be vulnerable to tragedy in the future.” But who can think of it that it was

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that sentence “to forget the suffering of the past is to be vulnerable to tragedy in the future” that had incurred the accusation of “slandering our party’s forgetfulness”. In fact, a few years before that, some of his arguments that resulted in unfair treatment were equally thought-provoking: “Some problems shall be ascribed to the system rather than to certain people. For instance, Liu Qingshan grafted dozens of billions (old denomination), which would have been impossible even in the KMT days. So we should initiate reform on the institutional level.” “We are facing serious problems of craving greatness and success, keeping subjectivism and doing things beyond our means in order to be impressive (in economic construction).” “It is dogmatism to worship and fawn on the Soviet Union as deity and to follow the words of the Soviet experts as a golden rule.” As an ancient poem describes, “The sound lingers when the vermilion string is flicked, as it comes from a lonely heart in the past.” Our beloved father has left us for forty years. While the things he left behind still look fresh, the trees on his graveyard have already grown tall. What we are gratified is that the rule of law in our motherland has begun to take shape, and the in-depth study of the Tokyo Trial has been carried out step by step. We are in the hope that the great regret at our father’s suspended writing and lost information could be made up by our young talents’ concerted efforts today. If so, what a blessing it would be both for our late father and the country! Mei Xiaokan September 2013 

Mei Xiao’ao

Editor’s Note

This is an unfinished manuscript, written between 1962 and 1965. In Mei’s plan, there were seven chapters. However, the Cultural Revolution disrupted his writing and Mr. Mei was purged; all of his manuscripts were confiscated. Until the year of 1973 when he passed away, only four chapters that were completed during those three years were found. In 1988, China’s Law Press published the chapters for the first time; nearly three decades later, its new edition was published. Till then, the value of this manuscript was unrecognized. Unfortunately, Mei’s synopsis, un-­ transcribed writings and references were missing in history, which have become an irreparable loss and regret. Ni Zhengyu and Wang Tieya, two prominent figures in law who enthusiastically supported Mei’s publications, had already died when the manuscript was published. In memory of their dedicated support, their prefaces are also appended in this book. With due respect to Mei, the Chinese translations of English names that may differ with current translations were not revised.

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Contents

1 The Establishment of the International Military Tribunal for the Far East and Its Jurisdiction  1 1.1 An International Trial of the Major War Crimes: An Innovative Act After World War II  1 1.2 Lessons Learned from the Failure of the International Trials After World War I  2 1.3 Preparatory Work During World War II  4 1.4 Process of Establishing Two Tribunals  6 1.5 Jurisdictions of Two Tribunals 10 1.6 Class-A War Criminals and International Tribunal 36 2 Charter and Organization of the International Military Tribunal for the Far East 39 2.1 Introduction to the Charter of the International Military Tribunal for the Far East 39 2.2 The Place of the Tribunal and Its Arrangements 45 2.3 Members of Tribunal: Judges and President 53 2.4 International Prosecution Section 77 2.5 Defendants’ Defense: Japanese and American Counsels 87 2.6 Administrative and Personnel Arrangements 99 3 Arrest and Prosecution of Japanese Major War Criminals119 3.1 Four Arrest Warrants of Major War Criminals from the General Headquarters119 xxv

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3.2 Preparatory Investigation and Prosecution of the War Criminals by the International Prosecution Section138 3.3 Selection of, and Bibliographic Guide to, 28 Defendant Criminals150 3.4 China, United States, United Kingdom, and Soviet Union Indictments of Major Japanese War Criminals185 3.5 Characteristics and Defects of the Indictment207 4 Trial Proceedings of the International Military Tribunal for the Far East217 4.1 Basic Provisions on Trial Proceedings in the Tokyo Charter217 4.2 Procedures for the Presentation and Adoption of Exhibits220 4.3 Procedure of Witness Appearing and Testifying in Court232 4.4 An Affidavit from a Witness Who Was Not Appearing in Court and the Defendant’s Confession255 4.5 Criticism of Court Proceedings264

About the Author

Mei Ju-ao   Mr. Mei Ju-ao was born in Jiangxi, Nanchang in 1904. He graduated from Tsinghua School (predecessor of Tsinghua University) in 1924 and then travelled to the United States to study at Stanford University and University of Chicago Law School, where he received his J.D. degree. After returning to China in 1929, Mei Ju-ao became a professor at Shanxi University, Nankai University, Wuhan University, Fudan University, the Central Political School, teaching courses including political science, civil law, criminal law, introduction to the common law and international law. From 1934 onwards, he served as a member of the Legislative Council of the KMT Government and had acted as acting chairman of its Foreign Affairs Committee. After the victory of the War of Resistance against Japan, he was assigned by the government, in 1946, to be the judge of the International Military Tribunal for the Far East representing China. During his nearly three years of trial work, he made great efforts to safeguard the national dignity and international justice, and contributed to the achievement of a just and fair trial. At the end of 1948, the KMT Government appointed him as Councilor of the Executive Council and Minister of Justice, but he refused to assume office and fled to Hong Kong. He arrived in Beijing under the arrangement of the CPC representatives in early December 1949. From 1950 onwards, he served as adviser to the Ministry of Foreign Affairs, ­representative to the National People’s Congress and member of its Bills Committee, member of the Chinese People’s Political Consultative Conference, member of the World Peace Council, Executive Director of the Chinese People’s xxvii

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Institute of Foreign Affairs, and Director of the Chinese Society of Political Science and Law. Mei Ju-ao suffered injustice in the “AntiRightists Movement” and the “Cultural Revolution”. He passed away in Beijing in 1973.

List of Figures

Fig. 2.1 Layout of the Tribunal 49 Fig. 2.2 Map of the seat arrangements for the hall of trial, International Military Tribunal for the Far East 52 Fig. 2.3 Judges of International Military Tribunal for the Far East 55 Fig. 2.4 Prosecutors of International Military Tribunal for the Far East 83 Fig. 3.1 Class-A war criminals 157 Fig. 4.1 Prosecution and defense parties 221 Fig. 4.2 Puyi’s testimony 257

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CHAPTER 1

The Establishment of the International Military Tribunal for the Far East and Its Jurisdiction

1.1   An International Trial of the Major War Crimes: An Innovative Act After World War II World War II ended with the fiasco of the Axis Powers. Germany surrendered on May 8 and Japan on September 2 in the year 1945. Following Germany’s and Japan’s surrender, the Allied Powers established two international tribunals in Nuremberg, Germany, and Tokyo, Japan, separately known as the International Military Tribunal, Nuremberg, and International Military Tribunal for the Far East, Tokyo. The two courts were often abbreviated as Nuremberg (International) Tribunal and Tokyo (International) Tribunal. Despite the slight difference in the organization of the two tribunals (see Chap. 2), they shared missions and purposes (i.e. to arrest, investigate, prosecute, interrogate, and make judgments upon some of the leaders of the Axis Powers as the primary or major war criminals).1 Those primary or major war criminals were sometimes called “Class-A war criminals”, referring to the people of Nazi Germany and the fascist Japanese government

1  Article 1 of the Charter of Nuremberg International Military Court: “In pursuance of…, there shall be established an International Military Tribunal for the just and prompt trial and punishment of the major war criminals of the European Axis.” Article 1 of the Charter of International Military Tribunal for the Far East: “The International Military Tribunal for the Far East is hereby established for the just and prompt trial and punishment of the major war criminals in the Far East.”

© Shanghai Jiao Tong University Press 2018 M. Ju-ao, The Tokyo Trial and War Crimes in Asia, https://doi.org/10.1007/978-981-10-7404-2_1

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who planned, prepared, launched, or executed the wars of aggression with the highest or primary responsibility. They are central for the countries to formulate and implement the policies of wars of aggression. It was an extraordinary event in the international community after World War II that the major or Class-A war criminals were interrogated and sanctioned by officially organized international courts in accordance with proper legal procedures. It was also a pioneering act in the history of mankind. Prior to that, the leaders of a defeated country, even if they were the culprits of the wars of aggression, were generally beyond the long arms of law and had never been subject to court trials or legal sanctions. Historically, it is not uncommon for a head of a state or a government to be killed or imprisoned at the hands of the enemy during a war. The most famous and recent example was Napoleon I who was defeated and then exiled by the United Kingdom, Russia, Austria, and other nations with lifelong imprisonment on the island of St. Helena. But his exile was not a decision adjudicated by any international tribunal or domestic court. It was indeed a creative initiative after World War II that the law was applied to sanction the leaders of the defeated countries.

1.2   Lessons Learned from the Failure of the International Trials After World War I At the end of World War I, the Central powers had intended to deliver the German heads and senior officials of state to international trials. However, that intention was a wishful thinking, finally becoming a joke in history. When World War I was at an end, “to hang the Kaiser” was prevalent among the Central and the Allied Powers. Since the War was unprecedented in its magnitude and the pain and loss that it caused to people, the people of those countries were filled with a deep hatred for Kaiser Wilhelm II and the leaders of the German regime who began the War, desiring severe and swift punishment for them. During the Paris Conference held in 1919, a serious discussion occurred about punishing the Kaiser and the major war criminals according to law, as indicated in four articles of Chap. 7 (Articles 227–230) of the Treaty of Versailles. Article 227 clearly recommended that “a special tribunal will be constituted to try the accused … with a view to vindicating the solemn ­obligations of international undertakings and the validity of international

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morality”. And Article 228 stipulated that “the German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons” under the Kaiser. According to the provisions of the Treaty of Versailles, the Conference appointed an international commission of inquiry to “be engaged in researching the individual’s responsibilities who started the War, listing their names and draft the charter for organizing the court”. The commission did as it was instructed. The Central and the Allied Powers would have made progress on the trial of German major war criminals, but the effort eventually turned in vain and ended up in bankruptcy, the reasons of which can be attributed to the following: (1) The victory of the October Revolution in Russia. The victory stunned the proletariat ruling class of the Central and the Allied Powers, whose attention was subsequently diverted to surrounding Russia and dealing with the Soviet regime; to implement the provisions on punishing the German war criminals in the Treaty of Versailles was not their concern any more. (2) The frictions between the Central powers, especially between the United Kingdom and France. After World War I, France seemed to be able to exert a grip over the European continent, which was against the balance of power on the continent, a traditional foreign policy long held by the United Kingdom. Therefore, to protect Germany while curbing France had become a basic principle of British foreign policy. (3) The German government refused to cooperate with the idea of extraditing the war criminals to international trials. As a result, the provisions on punishing the Kaiser and other major war criminals in the Treaty of Versailles existed without any actual implementation. The organizing of an international court stipulated in the Treaty failed, and the Allied Powers, reluctant to proceed and for their own convenience, entrusted the trial to the German government. The German government did not begin the trial in Leipzig until May of 1921, two and a half years after the War ended, presided by its Supreme Court which had no respect for the trial. The insincerity and absurdity of that trial was without parallel in history.

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According to the Treaty of Versailles, the Allied Powers proposed a list of 896 major war criminals to the German government for arrest and prosecution. The German government refused and cut the number down to 45, the trial of whom were merely phrased as an “experiment trial”. However, only 12 of them were actually tried, and only 6 were sentenced by the Court. Surprisingly, the sentences for the criminals were not severe, ranging from six months to four years in prison. Two of the six sentenced war criminals escaped from prison. It was believed that the Court deliberately let the prisoners escape. The only achievement of the Leipzig Trials was the punishment of merely four minor war criminals. When Karl Stenger, an infamous and murderous German general, was found not guilty by the Court, the spectators cheered and offered tribute to him as a “national hero”. Kaiser Wilhelm II, who must bear the greatest responsibility for the War, fled to the Netherlands before the end of World War I. However, the Netherlands refused to extradite him, claiming that such an act would contradict with its constitution and historical traditions, thereby letting him live at large without any proper legal sanctions. That is the reason why the Leipzig Trials were called a farce in history; and the above-mentioned is all that was achieved from the world’s first trial of major war criminals after World War I.2 From this simple narrative we can conclude that before World War II, the conception and attempt to punish the war makers and instigators in the international community had emerged. The Leipzig Trials were a fiasco and the provisions on punishing war makers in the Treaty of Versailles were merely a scrap of paper; even so, the idea of making them accountable for their acts began to unfold. The failure of the trials also taught some lessons regarding punishment of war criminals, which were conducive to the smooth trials of major war criminals of World War II.

1.3   Preparatory Work During World War II The Allied Powers (at the time called “United Nations”, referring to the countries that were engaged in fighting with the Axis Powers, not the organization established in New York after World War II) had issued some 2

 For details about the Leipzig Trials, see Mullins, Leipzig Trials (1921).

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declarations and made preparations regarding the punishment of war criminals after the War ended: (1) On January 13, 1942, Belgium, Czech, Greece, the Netherlands, Poland, Yugoslavia, Luxemburg, Norway, and France issued a joint declaration, affirming that to punish the war criminals was one of their major objectives. (2) In October 1943, the United Nations Commission for the Investigation of War Crimes was founded in London. Apart from the above nine countries, China, the United States, and the United Kingdom also joined the commission. (3) On November 1, 1943, the Soviet Union, the United States, and the United Kingdom jointly issued a Statement on Atrocities when the Moscow Conference concluded. In addition to re-affirming that war criminals shall be punished, they also claimed that all the war criminals that committed atrocities “will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein”. The Statement also declared that it “is without prejudice to the case of German criminals whose offenses have no particular geographical localization and who will be punished by joint decision of the government of the Allies”, stating that the leaders and the war instigators of the Axis Powers should be tried by an international tribunal jointly presided over by the Allied Powers. In addition to the joint efforts dedicated by the above-mentioned governments, the leaders of the Allied Powers also made stern statements on the post-war punishment of war criminals, the most prominent of which were: (1) On July 30, 1943, President Roosevelt issued a statement warning neutral nations against asylum for war criminals; (2) On November 6, 1943, Marshall Stalin required “all the fascist criminals responsible for the present war and the sufferings of the people shall bear stern punishment”.3 3  For the statements, diplomatic correspondence and declarations, see S.  Glueck, War Criminals: Their Prosecution and Punishment, Appendix B, pp. 109–113.

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1.4   Process of Establishing Two Tribunals In May 1945, Germany surrendered. From July 17, 1945, the United Kingdom, the United States, and the Soviet Union held a conference in Berlin which concluded with the renowned Potsdam Agreement. In Chap. 6 titled “War Criminals”, it reaffirmed its resolution to impose severe punishment on the major war criminals affiliated with Hitler’s regime, hoping “the trial of these major criminals should begin at the earliest possible date”.4 Before this conference, the three powers also held a conference in Yalta, Crimea, which centered around punishing the German major war criminals. The Yalta Conference statement decided to “bring all criminals to just and swift punishment”.5 Driven by the Allied Powers’ unrelenting yearning for punishing the fascist war criminals during and after the War, the representatives from the Soviet Union, the United States, the United Kingdom, and France were convened in London, negotiating on organizing international tribunals to try the major fascist war criminals. On August 8, 1945, they reached a London Agreement on establishing the international military tribunals and the annex, Charter of International Military Tribunal (“Nuremberg Charter”), which stipulated the constitution, jurisdiction and powers, and the conduct of the trial.6 The organizing was completed after two months of signing the Agreement and the Nuremberg Charter. On October 18, 1945, the Nuremberg Tribunal started the trial of 22 major war criminals, including Hermann Göring and Rudolf Hess, but the proceedings were not initiated until October 20. The International Military Tribunal for the Far East, different from the founding of the Nuremberg Tribunal, was not directly established under an international agreement, but by the Supreme Commander for the Allied Powers at Tokyo under the authorization of a series of international documents, including the Potsdam Declaration, Japanese Instrument of Surrender, and the decision made during the Moscow Conference. 4  For the provision about punishing war criminals, see Collection of International Treaties (1945–1947), World Affairs Press (ed.), pp. 87–88. 5  For the Yalta Conference Communique, ibid. at p. 8. 6  For the London Agreement and the Nuremberg Charter, ibid. at pp. 94–103. Australia, Belgium, Czech Republic, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, and Yugoslavia signed this agreement till the end of 1945.

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The Potsdam Declaration was jointly announced on July 26, 1945, by China, the United States, and the United Kingdom; the Soviet Union later adhered to the Declaration. The issuance of the Declaration was to urge the Japanese armed forces to surrender unconditionally, which provided the terms that Japan should accept once they surrendered. Item 6 of the Declaration claimed that “there must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest, for we insist that a new order of peace, security and justice will be impossible until irresponsible militarism is driven from the world”. Item 10 declared that “we do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners”.7 On September 2, 1945, Mamoru Shigemitsu and Umezu Yoshijiro, respectively the foreign minister and Commander-in-Chief, signed the Instrument of Surrender on behalf of the Japanese government which was witnessed by Douglas MacArthur, the representative of accepting the surrender on behalf of nine Allied Powers. The Instrument also accepted the provisions of the Potsdam Declaration, writing that “we, acting by command of and on behalf of the Emperor of Japan, the Japanese Government and the Japanese Imperial General Headquarters, hereby accept the provisions set forth in the declaration issued by the heads of the Governments of the United States, China and Great Britain on 26 July 1945, at Potsdam, and subsequently adhered to by the Union of Soviet Socialist Republics”, and “we hereby undertake for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith” in item 6.8 Since Japan accepted all the provisions of the Declaration, it naturally abided by the provision that “stern justice shall be meted out to all war criminals”. However, the Potsdam Declaration solely stipulated the conditions for Japan’s surrender, not the procedures and measures for implementing those provisions. Even though Douglas MacArthur, on behalf of the US government as the Supreme Commander of the Allied Powers, had exclusive authority over the matters related to the occupation and management of post-war Japan and the implementation of the provisions of the 7 8

 Potsdam Declaration, see Collection of International Treaties (1945–1947), pp. 77–78.  The Instrument of Surrender, ibid. at pp. 112–114.

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Instrument, he would also provide a legal basis as authorized by the Allied Powers, specifically agreed upon during the Moscow Conference to which China made a consent. In conclusion, such an agreement became a unanimous resolution to fight against the Japanese military forces. The agreement stipulated “the Supreme Commander of the Allied powers shall take any necessary measures to ensure the Japan’s surrender, occupation and control will be realized”. That agreement gave the Supreme Commander extensive power; meanwhile, from the perspective of the law, he was also responsible for implementing the provisions of the Declaration, including the punishment of war criminals.9 Based on this agreement, Douglas MacArthur, the incumbent Supreme Commander of the Allied Powers, who had made political consultations with the countries that surrendered, issued the Special Proclamation for Establishment of an International Military Tribunal for the Far East on January 19, 1946. The Proclamation read as follows: Whereas, the United States and the Nations allied therewith in opposing the illegal wars of aggression of the Axis Nations, have from time to time made declarations of their intentions that war criminals should be brought to justice; Whereas, the Governments of the Allied Powers at war with Japan on 26th July 1945 at Potsdam, declared as one of the terms of surrender that stern justice shall be meted out to all war criminals including those who have visited cruelties upon our prisoners; 9  Douglas McArthur, the incumbent Supreme Commander of the Allied Powers in Tokyo was an arrogant military man and one of the three Generals of the Army. He was a field marshal in the Philippines when the Japanese attacked Pearl Harbor in December 1941. After the attack, he was appointed as Commander-in-Chief of US Army Forces Pacific and the Supreme Commander of the Allied Powers. Douglas MacArthur presided over the war against Japan until Japan surrendered on September 2, 1945, when he served as the general representative accepting Japanese surrender. Since the US army was stationed in Japan then, he arrogated to himself all the power, acting as an emperor for the Tenno. In the rudimentary stage of occupying and controlling Japan when the memory of Japanese aggression was fresh, the alert on the brutality of the Japanese troops was still on, and the tendency of harboring Japan’s war criminals was in embryo, his acts were congruous with the assigned responsibilities by the Allied Powers, such as democratic reforms and war criminal punishment. At that prime time, the International Military Tribunal for the Far East was established. But soon after, without authorization he released, on two occasions, 40 or so Class-A war criminals who had been arrested to be prosecuted in the second and third cases. After the judgment on the Class-A war criminals in the first case was concluded, all the other Class-A war criminals were released by him. With no criminals to be prosecuted, the Tribunal disbanded.

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Whereas, by the Instrument of Surrender of Japan executed at Tokyo Bay, Japan, on 2nd September 1945, the signatories for Japan, by command of and on behalf of the Emperor and the Japanese Government, accepted the terms set forth in such Declaration at Potsdam; Whereas, by such Instrument of Surrender, the authority of the Emperor and the Japanese Government to rule the state of Japan is made subject to the Supreme Commander for the Allied Powers, who is authorized to take such steps as he deems proper to effectuate the terms of surrender; Whereas, the undersigned has been designated by the Allied Powers as Supreme Commander for the Allied Powers to carry into effect the general surrender of the Japanese armed forces; Whereas; the Governments of the United States, Great Britain, and Russia at the Moscow Conference, 26th December 1945, having considered the effectuation by Japan of the Terms of Surrender, with the concurrence of China have agreed that the Supreme Commander shall issue all Orders for the implementation of the Terms of Surrender. Now, therefore, I, Douglas MacArthur, as Supreme Commander for the Allied Powers, by virtue of the authority so conferred upon me, in order to implement the Term of Surrender which requires the meting out of stern justice to war criminals, do order and provide as follows: ARTICLE 1. There shall be established an International Military Tribunal for the Far East for the trial of those persons charged individually, or as members of organizations, or in both capacities, with offenses which include crimes against peace. ARTICLE 2. The Constitution, jurisdiction and functions of this Tribunal are those set forth in the Charter of the International Military Tribunal for the Far East, approved by me this day. ARTICLE 3. Nothing in this Order shall prejudice the jurisdiction of any other international, national or occupation court, commission or other tribunal established or to be established in Japan or in any territory of a United Nation with which Japan has been at war, for the trial of war criminals.10

10  For the No. 1 Special Proclamation of the Supreme Commander of the Allied Powers in Tokyo (January 19, 1946), see US State Department, Trial of Japanese War Criminals (Publication No. 2613). It was also reported in China and other foreign newspapers.

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Soon after this special proclamation and the Charter of the International Military Tribunal for the Far East (“Tokyo Charter”), the Supreme Commander of the Allied Powers nominated and appointed 11 judges from China, the United States, the United Kingdom, the Soviet Union, Australia, Canada, France, the Netherlands, New Zealand, India, and the Philippines; the judges from India and the Philippines were appointed in April. Due to the discrepancy of the judges’ arrival dates in Tokyo, the pleadings against 28 Japanese major war criminals were not accepted by the International Prosecution Section of the Supreme Commander of the Allied Powers until April 29, 1946. On May 3, the prosecution opened its case.11

1.5   Jurisdictions of Two Tribunals 1.5.1   Conceptual Evolution of “War Crimes” The Tokyo Charter embodied 5 sections with 17 articles, including topics about the tasks and powers (i.e. jurisdiction), the establishment of the tribunal (arrangement of agencies and personnel), and the primary principles for producing evidence, judgment, sentence, review, and sentence reduction. In this section, the articles about jurisdiction shall be discussed first for the following reasons: (1) The provisions on jurisdiction in the Tokyo Charter were the key for the establishment and existence of the tribunal, whose confusion also inflamed fiery debates. Not only did the lawyers defending the accused talk ears off and attack the tribunal’s jurisdiction, 11  From publishing its Charter and list judges to starting the court session, it took the International Military Tribunal for the Far East three and a half months to begin due to different arrival dates of the judges from 11 countries. The judge from the Soviet Union, accompanied by Soviet prosecutors and several staff members, arrived two days late before the court could proceed with the trial. It was rumored that his delay was due to the General Headquarters of the Allied Powers (GHQ) deliberately placing obstacles of visa issues for his companions: the Soviet Union had intended to send a team of 70 people to work for the court and the prosecution section, but the GHQ under the US control considered it too large a team and refused to issue visas. Through negotiations and consultations, only about 20 entries were allowed. This story fully reveals the arrogance and dominance of the United States.

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but also a large number of the international law scholars in the Western countries were opposed to or suspicious of it. Before World War II, the principles of international law that came to light from the Tokyo Charter, as it happened, were not perspicuous. (2) The tribunal affirmed and supported the articles regarding jurisdiction, which made plain the principles embodied therein and developed them later. All of those are contributions made by the Nuremberg and Tokyo Trials to modern international law. On December 11, 1946, the First Session of the General Assembly reached a resolution that “affirmed” the principles of international law recognized by the Nuremberg Charter and the Judgment of the Tribunal.12 For the above two reasons, we believe it will be conducive to understand the work and mission of the tribunal if we clarify the provisions about jurisdiction in the Tokyo Charter. We will discuss provisions of establishment, trial procedures, and other matters later in the chapter. The jurisdiction for the International Military Tribunal for the Far East is provided in Article 5 of the Tokyo Charter, which reads as follows: ARTICLE 5 Jurisdiction over Persons and Offenses. The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offenses ­ which include Crimes against Peace. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against Peace: Namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) Conventional War Crimes: Namely, violations of the laws or customs of war; (c) Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any  Yearbook of the United Nations 1946–1947, p. 254.

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crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any or “the foregoing crimes are responsible for all” acts performed by any person in execution of such a plan. Despite slight differences in wording,13 the provisions regarding jurisdiction in Article 6 of the Nuremberg Charter are essentially consistent with those of the Tokyo tribunal. Following the provisions provided by the Charters of the Nuremberg and Tokyo Tribunals, chiefly the judgments made by the tribunals which promoted them and the affirmation of the principles in the United Nations General Assembly, the “war crime” had only three widely recognized definitions as was explained above, which, undeniably, was a major development compared with traditional international law. Prior to World War II, the conception of “war crimes” was vague and confusing. The violations or breach of international warfare laws and practices (items [a] of Article 5 of the Tokyo Charter and Article 6 of the Nuremberg Charter) were traditionally admitted as a war crime; the civilians who were not combatants took arms and had engaged in fighting were considered committing a war crime; and even the acts of espionage, sabotage (the so-called rebellion acts in the war), or robbery conducted behind the enemy lines were collectively referred to as a war crime. War crimes are acts as may be punished by the enemy on capture of the offenders.14 13  The differences between Article 5 of the Charter of the International Military Tribunal for the Far East and Article 6 of the Charter of the Nuremberg International Military Tribunal are as follows: (1) The former defined the Crime against Peace as “the planning, preparation, initiation or waging of a declared or undeclared war aggression”. The italicized words are not used in the latter. (2) It was “conventional war crime” in the former, but simply “war crime” in the latter. (3) The former stipulated the conventional war crime as “violations of the law or customs of the law”, in which the latter added “such violations shall include, but be not limited to” to this stipulation. (4) The latter defined the Crime against Humanity as “or persecution on political, racial or religious grounds”. The italicized word was not used in the former’s definition. Apart from these differences, the provisions regarding jurisdiction in the two Charters were completely consistent. 14  See Oppenheim, International Law: A Treatise, London: Longmans, 1948, No. 151, 152, 154, and 155.

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Since the three kinds of war crimes were affirmed by the Charters and the judgments of both the Nuremberg and Tokyo Tribunals, other acts against the enemy, such as espionage and sabotage, although punishable by the belligerents, were not punished as war crimes.15 Consequently, the scope of the war crime defined in the charters was narrowed down; in fact, its scope was actually expanded due to the fact that besides the Conventional War Crimes, two other types of major war crimes—Crimes against Peace and Crimes against Humanity—were recognized. The following sections briefly explain the three types of war crimes, respectively. The “conventional war crime” is approached first. 1.5.2   Conventional War Crimes Conventional War Crimes are now recognized as one of the three most common types of war crimes. The Charter of the International Military Tribunal for the Far East defines it as “violations of the laws or customs of war”. While the Charter of the International Military Tribunal adds “such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity”. By its nature, the addition of the Charter of the International Military Tribunal is a list of examples. In fact, the content of that particular crime is extensive. In the past, it has always been considered one of the most important war crimes, or even the only type of war crime. Since ancient times, any atrocities by warring countries against their enemies, such as murder, arson, robbery, rape, torture, or mutilation of civilians, must be punished whenever possible, with or without trial. This has been the international practice for a long time. As a result of the long-term practice by many countries, many unwritten principles and practices have been formed in the international context. 15  Oppenheim’s conception of war crime in his International Law: A Treatise was confusing. He still sometimes mistook those acts as war crimes. For the criticism about Oppenheim’s conception, see И.П.Трайнин, “the war crime”, Oppenheim’s International Law (Chinese translation), Sect. A, Appendix, Part 2 of Volume 2, pp. 409–413.

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With the progress of the times and the frequent wars, the contents of those principles and practices are gradually increasing, and the scope has gradually expanded. By the middle of the nineteenth century, due to mutual restriction and humanitarian reasons, people began to realize the necessity to gradually regulate and unify those mature principles and practices in the form of international convention. Therefore, over the past 100 years, a series of diplomatic conferences have been held internationally on the method of combat, the use of weapons, and the treatment of the wounded, prisoners of war (POWs), and civilians. A series of international conventions have been signed, among which the conventions signed at the Hague Peace Conferences of 1899 and the Hague Peace Conferences of 1907, especially the Fourth Hague Convention and its annex marine rules signed in 1907 and the four Geneva conventions signed at the Geneva meeting in 1949, cover a fairly wide range. Up until the present, we can almost say that except for a small number of new issues, such as the use of nuclear weapons and air war, the conventions include most issues related to declaration of war, use of weapons, combat methods, treatment of POWs, protection of civilians, position of neutral powers, and many other rules and practices which countries and individuals shall comply with in wartime.16 Because most countries have signed, ratified, or acceded to

16  There were a number of rules and practices of war which had been adopted by international conferences as a convention, declaration, or protocol prior to the Hague Peace Conferences of 1907, including the Paris Declaration Respecting Maritime Law (1856), the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1864), Saint Petersburg Declaration of 1868 Renouncing the Use of Explosive Projectiles Under 400 Grammes Weight in Time of War; the three conventions and the three declarations were signed at the Hague Peace Conferences of 1899. The three conventions are the Convention for the Pacific Settlement of International Disputes, Convention with Respect to the Laws and Customs of War on Land, and Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864. The three declarations concern the Prohibition of the Discharge of Projectiles and Explosives from Balloons, the Prohibition of the Use of Projectiles with the Sole Object to Spread Asphyxiating Poisonous Gases, and the Prohibition of the Use of Bullets which can Easily Expand or Change their Form inside the Human Body. Another 14 conventions and declarations signed at the Hague Peace Conferences of 1907 include Convention for the Pacific Settlement of International Disputes, Convention respecting the Limitation of the Employment of Force for Recovery of Contract Debts, Convention relative to the Opening of Hostilities, Convention with respect to the Laws and Customs of War on Land, Convention relative to the Rights and Duties of Neutral Powers and Persons in case of War on Land, Convention relative to the Legal Position of Enemy Merchant Ships at the Start of Hostilities, Convention relative to the Conversion of Merchant Ships into

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those conventions, they have become the internationally recognized codes of conduct abided by countries in the world. The violation of those rules would be synonymous with committing war crimes, namely, “Conventional War Crimes” as stated in the Charter of the International Military Tribunal for the Far East, commonly referred to as “atrocities”.17 War-ships, Convention relative to the Laying of Automatic Submarine Contact Mines, Convention concerning Bombardment by Naval Forces in Time of War, Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of July 7, 1906, Convention relative to the Rights and Duties of Neutral Powers and Persons in case of War on Land, and the Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons. These conventions partially replace, amend, or supplement the previous conventions. After the Hague Peace Conferences of 1907, the important development of war legislation included the London Declaration regarding the Laws of Naval War (1909); the Treaty on the Use of Submarines and Noxious Gases in War (1922) (although not approved by the United States, but because of the declaration of the nature of international practice, the above two documents are still important documents of international law); the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (1925) (with more than 46 contracting countries, including the Soviet Union and the Republic of China; the United States and Japan have still not approved; the People’s Republic of China signed this protocol on July 13, 1952); the Third Geneva Convention Relative to the Treatment of Prisoners of War (1929) and the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1929) (those two conventions amended and supplemented the Hague Conventions of 1907; the former was part of the fourth Hague Convention of 1907, which has now become an independent Convention; the latter is the original Convention, which is amended and expanded to replace the original Convention). After World War II, countries signed another four conventions in Geneva in 1949: in addition to the amendments to the two conventions of 1929 (namely the Third Geneva Convention Relative to the Treatment of Prisoners of War and the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field), the Geneva Convention for the Amelioration of the Condition of the Wounded Sick and Shipwrecked Members of Armed Forces at Sea was also amended (originally the Tenth Hague Convention of 1907), and the Geneva Convention relative to the Protection of Civilian Persons in Time of War was added. On July 13, 1952, the People’s Republic of China signed a reservation to recognize the signature of the Republic of China’s Government to those four Geneva Conventions and on November 5, 1956, they formally ratified them. 17   The following acts are more important and frequently committed atrocities or Conventional War Crimes (a violation of the laws and practices of war): (1) Making use of poisoned or otherwise forbidden arms and ammunition. (2) Killing or wounding soldiers disabled by sickness or wounds, or who have laid down arms and surrendered. (3) Assassination and hiring of assassins. (4) Treacherous request for quarter or treacherous feigning of sickness and wounds. (5) Ill-treatment of POWs, of the wounded, and sick. Appropriation of such of their money and valuables as are not public property. (6) Killing or attacking harmless private enemy individuals. Unjustified appropriation and destruction of their private property and, especially, pillaging. Compulsion of the population of occupied

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Some people say that certain conventions, such as the Hague Conventions, due to the “general participation clause” (i.e. the convention) would be binding only if all the belligerents were parties to it; the convention would not be binding if one of the belligerents was not a party to it. Therefore, the effectiveness of those conventions is limited and not universal. If the people of the countries not party to the convention are in violation of the provisions of the conventions, they should not be punished for violating the laws and practices of war. The Nuremberg Tribunal has refuted that argument by stating: The rules of the Hague Conventions are no doubt a progress in the formulation of international law at that time. However, as the Conventions clearly pointed out, the purpose was to amend the laws and practices of general operations in war, which were present at that time. By 1939, however, the rules set forth in the Conventions were recognized by all civilized nations, and were considered to be merely the laws and practices of war.18

The International Military Tribunal for the Far East holds the same view of the Hague Conventions by saying that “although the obligation to observe the provisions of the Convention as a binding treaty may be swept away by operation of the ‘general participation clause’, or otherwise, the Convention remains as good evidence of the customary law of nations, to be considered territory to furnish information about the army of the other belligerent or about his means of defense. (7) Disgraceful treatment of dead bodies on battlefields. Appropriation of such money and other valuables found upon dead bodies as are not public property, nor arms, ammunition, and the like. (8) Appropriation and destruction of property belonging to museums, hospitals, churches, schools, and the like. (9) Assault, siege, and bombardment of undefended open towns and other habitations. Unjustified bombardment of undefended places on the part of naval forces. (10) Unnecessary bombardment of historical monuments and of such hospitals and buildings devoted to religion, art, science, and charity, as are indicated by particular signs notified to the besiegers bombarding a defended town. (11) Violations of the Geneva Convention. (12) Attack on or sinking of enemy vessels which have hauled down their flags as a sign of surrender. Attack on enemy merchantmen without previous request to submit to visit. (13) Attack or seizure of hospital ships, and all other violations of the Hague Convention for the adaptation to naval warfare of the principles of the Geneva Convention. (14) Unjustified destruction of enemy prizes. (15) Use of enemy uniforms and the like during battle; use of the enemy flag during attack by a belligerent vessel. (16) Violation of enemy individuals furnished with passports or safe-conducts, violation of safeguards. (17) Violation of bearers of flags of truce. (18) Abuse of the protection granted to flags of truce. (19) Violation of cartels, capitulations, and armistices. (20) Breach of parole. (International Law. A Treatise. Volume 2 Part II annotation No. 252 by L. Oppenheim.) 18  Judgment of the International Military Tribunal, Nuremberg, London Version (published by HMSO), p. 64.

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by the Tribunal along with all other available evidence in determining the customary law to be applied in any given situation”.19 In many cases, both the Nuremberg Tribunal and the International Military Tribunal for the Far East have cited the provisions of the Convention, considering them as “universally recognized rules”, which had the binding force to Germany and Japan, regardless of whether they were parties to the Convention or not. This is true of the Hague Conventions, and it is also true of the Geneva Conventions and other conventions signed by most other countries. The binding of those conventions to a country does not lie in the fact that a country is a party to those conventions, but rather that they express and declare the generally accepted and commonly abided rules and practices of war. As a result, the scope of those laws and practices is very broad, and their binding force is universal. The act of violating the laws and practices of war is a war crime, which had been acknowledged long before World War II, and had been recognized by all international law scholars. Although there were not many cases of sentencing of war criminals before World War II, it was not common for the prisoners who had violated the laws and practices of the war (the act of committing atrocities) to be subject to legal sanctions during the war or after the war. Even the ridiculous Leipzig War Crimes Trials were actually carried out on the basis of punishing those acts violating the laws and practices of war. Making it one of the war crimes within their jurisdiction, the Charters of the two international tribunals of Nuremberg and the Far East are following the tradition of international law. That part of the principle of international law has not changed much, but its scope of application is not only clearer but also more expanded than before. In the two trials in Tokyo and Nuremberg, the defendants did not raise any objection to the exercise of the jurisdiction of the court, and at that time there was no debate among the international jurists and writers. 1.5.3   Crime Against Humanity In addition to Conventional War Crimes (i.e. in violation of the laws and practices of war crimes), the Nuremberg International Military Tribunal and the International Military Tribunal for the Far East also provide the power of the court to exercise the jurisdiction of two other types of war 19  Decision of the International Military Tribunal for the Far East, Chinese Translation (published by 1950s Press in Beijing), Chap. 3, p. 40.

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crimes, namely, “Crimes Against Humanity” and “Crimes Against Peace” (Crimes of Aggression). Those two crimes are more serious crimes than Conventional War Crimes. After World War II and the Nuremberg and Tokyo trials, with confirmation of the United Nations General Assembly in 1946, those two crimes have been clearly affirmed. That is an important development in the international law of war crimes. First, we will review Crimes against Humanity. All violations of the laws and practices of war are mostly cruel and against humanity; but “Crimes against Humanity” has special meaning here, which is not what we usually mean by “violation of humanitarianism”. The expression or declaration of the laws and practices of war in the Hague Conventions and other international treaties, in which the prohibited acts are only limited to certain behaviors by the opposing sides in the war such as rape, robbery, torture, mutilation of civilians, the use of illegal weapons, not including all inhumane acts, particularly not including ­large-­scale inhumane acts such as the implementation of genocide against a peaceful population, or to implement collective pogroms against them for racial, political, or religious reasons. During World War II, the atrocities of Hitler’s organization were unprecedented, and their way of killing and persecution was beyond description. Their mass slaughter of the Jews, the Soviets, the people of Czech, and the Polish was so frightful that no convention makers had ever foreseen such a thing. It is extremely unfair if we punish only those conventional crimes in violation of the laws and practices of war, while turning a blind eye to those more severe and vicious crimes, just because there are no provisions from the Convention, or that there is no precedent. Therefore, Crimes against Humanity was added to the Charter of the Nuremberg International Military Tribunal and the Charter of the International Military Tribunal for the Far East. It complements the shortcomings of the crime of violating conventional laws and practices of war, and is also the extension and development of the violations of conventional laws and practices of war. For example, the extermination of the Jews by Hitler’s organization for racial reasons, the Trial of the Major War Criminals before the International Military Tribunal had astonishing records: Evidence was given of the treatment of the inmates before and after their extermination. There was testimony that the hair of female victims was cut off before they were killed and shipped to Germany to be used in the manufacture of mattresses. The clothes, money, and valuables of the inmates were also salvaged and sent to the appropriate agencies for disposition. After extermination, the gold

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teeth and fillings were taken from the heads of the corpses and sent to the Reichsbank. After cremation the ashes were used for fertilizer, and in some instances attempts were made to utilize the fat from the bodies of the victims in the commercial manufacture of soap. Special groups traveled through Europe to find Jews and subject them to the ‘final solution’. German missions were sent to such satellite countries as Hungary and Bulgaria, to arrange for the shipment of Jews to extermination camps and it is known that by the end of 1944, 400,000 Jews from Hungary had been murdered at Auschwitz. Evidence has also been given of the evacuation of 110,000 Jews from part of Rumania for ‘liquidation’. Adolf Eichmann, who had been put in charge of this program by Hitler, has estimated that the policy pursued resulted in the killing of 6 million Jews, of which 4 million were killed in the extermination institutions.20

No laws and practices of war have any provisions of these frightful atrocities of the genocide, so we have no choice but to call it “Crime against Humanity”. The reason why Crimes against Humanity are different from Conventional War Crimes is that the latter is forbidden by the international laws and rules, while the former is not allowed by any humanitarian concept and spirit. Additionally, there are two characteristics of Crimes against Humanity which are not present in other war crimes. First, Crimes against Humanity could be committed not only against the enemy but also against the citizens of one’s own country. For example, the Germans massacred their native (German) Jews on a large scale. Second, Crimes against Humanity could be committed not only during wartime but also before war. For example, the Germans began to kill native Jews before World War II. However, to have these murders considered as war crimes that can be tried, it must be determined that they were committed to realize other war crimes, or that they are related to other war crimes. For example, the mass murder of the native Jews by the Germans was to facilitate their aggression, which was a form of war crime. Therefore, these types of murders constitute a Crime against Humanity. The killing, which is not related to aggression or any war crimes although violating of humanity, could not be identified as a war crime. Because as the name suggests, a war crime must be related to the war. Once it is determined that the acts in violation of humanity are related to the realization of certain war crimes, it is definitely 20  Trial of the Major War Criminals before the International Military Tribunal, London Edition, p. 15, Chinese Translation, p. 105.

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a Crime against Humanity. It is unnecessary to discuss whether the act is in violation of the domestic law of the place of the act. For example, once it is determined that the killing of native Jews by Germans is related to their aggression, we can conclude that it is a Crime against Humanity, even if the domestic law of the place of the act (the domestic law of Nazi Germany) does not prohibit the killing, even encourages it. In fact, most of those killings are directly or indirectly ordered by the national law. With that it is easier to understand the provisions of Crimes against Humanity in the Charter of the Nuremberg International Military Tribunal and Charter of the International Military Tribunal for the Far East. Furthermore, with this understanding, we can further recognize the necessity for the establishment of the crime. The addition of the crime in the jurisdiction of the Nuremberg International Military Tribunal and the International Military Tribunal for The Far East does not cause too many problems. There were no serious protests against this crime from the defense lawyers, and there was not much criticism regarding the crime by international law scholars, possibly because everyone thinks that the punishment of such a crime is imperative. 1.5.4   Crimes Against Peace (Crimes of Aggression) In the Charter of the Nuremberg International Military Tribunal (Article 5) and in the Charter of the International Military Tribunal for the Far East (Article 6), Crimes against Peace are classified as Item A of court jurisdiction, which is the first item and the most important one. Among 22 major Nazi war criminals such as Hermann Göring and 28 major Japanese war criminals including Tō jō Hideki, many of whom were accused of Item B (Conventional War Crimes) or Item C (Crimes against Humanity), or both B and C, every one of them was accused of Item A war crimes, namely, Crimes against Peace or the Crimes of Aggression. That is the major charge against them, while the accusations of B and C are only minor in the two international tribunals, if not incidental. As a result, those people are often referred to as “Class-A War Criminals”, and those two trials are often referred to as trials of Class-A War Criminals of Germany and Japan. Those defendants are called “Class-A War Criminals”, not only because they have a very high status and great power within their countries, but also because they are mainly responsible for the formulation of national policy of aggression and the implementation of the war of aggression.

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As noted earlier, no objection has been raised as to whether Item B (Conventional War Crimes) comes within the jurisdiction of the Nuremberg International Military Tribunal and the International Military Tribunal for the Far East because this crime have always been considered within the jurisdiction of either international or domestic military courts. Although Item C (Crimes against Humanity) is a newly established crime, the defendants have not made serious protests against the fact that this crime is within the jurisdiction of those two tribunals; nor have any scholars had disputes over the issue. However, the most important jurisdiction provided in the two Charters of the International Tribunals, namely, jurisdiction over Crimes against Peace or the Crime of Aggression, has caused great attacks and opposition by the defense lawyers. And scholars and writers of international law in Western countries at that time had also expressed many doubts and controversy over it. In accordance with the provisions of the two Charters of the International Tribunals, the war of aggression is a crime; anyone who participates in this type of war in any way has to bear individual responsibility for it. That is a hard and fast rule which is unequivocal. Those who have attacked or suspected that provision have raised the following two fundamental questions in an attempt to deny or shake the most important jurisdiction of the tribunal: First, was the war of aggression considered a crime in international law when the defendants were involved? If it was not considered a crime in the international law at that time, even if it is now considered a crime in the international law at the time of the trial, the accused should be acquitted, because of the principle of “non-retroactivity of law”. Second, even if the war of aggression was considered a crime in the international law at that time, should the individual involved in it be held responsible? War is an “Act of State”, regardless of the nature of aggression or non-aggression. It is a type of exercise or performance of national sovereignty, which is permitted in international law. The state rather than any individual should be responsible for an “Act of State”. Moreover, the state rather than the individual is the main body in the international law, and the individual is not responsible in the international law. During the course of the trial of the International Tribunal for the Far East and the Nuremberg International Tribunal, these two legal issues

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caused heated controversy, which is the focus of attack by the defense lawyers over the court’s jurisdiction. They repeatedly emphasized two issues, namely: first, the war of aggression is not a crime in the international law; second, even if it is a crime, the defendants do not shoulder individual responsibility for it. At that time, the international law scholars in the West were also divided and confused about those two issues. A large proportion of them had adopted the same or similar views and propositions with the defense lawyers.21Among the 11 judges of International Military Tribunal for the Far East, Mr. R. Pal, an Indian judge, had the same views as the defense lawyers. From the beginning of the court hearing to the sentencing, Mr. R. Pal had not been working with the other ten judges, stubbornly insisting on his own view that the war of aggression was not a crime, and that all the accused should be acquitted. Of course, that was Mr. R. Pal’s personal opinion and does not represent the opinion of the International Tribunal for the Far East.22 The International Military Tribunal for the Far East, like the Nuremberg International Military Tribunal, dealt with the two issues mentioned above 21  Shortly before and after the establishment of the Nuremberg and the Tokyo International Military Tribunals (from autumn 1945 to winter 1946), there were many articles on the issue of aggressive war and individual responsibility in the Western newspapers and law journals. As far as the articles that I have read were concerned, most writers were in support of the Charters of the two tribunals (i.e. the war of aggression is a crime, and the participants should shoulder individual responsibility.) Those writers include Lord Wright, Hans Kelsen, William Cowles, Albert Levy, H. Lauterpacht, Q. Wright, and the like. Those writers who doubted the provisions of the jurisdiction in the Charters include C.E. Wyganski, Max Finch, Erich Hula, and G.  Swarzenberg, among others. Before the trial of the Nuremberg International Military Tribunal, Sheldon Glueck had belonged to the conservative opposition minority (see War Criminals: Their Prosecution and Punishment published by Alfred A. Knopf, Inc. in New York in 1944). But by 1945, he changed his original opinions and became an important advocate of the Charter of the Nuremberg International Military Tribunal (see Nuremberg Trial and Aggressive War published by the Alfred A. Knopf, Inc. in New York in the summer of 1946). 22  When the Tokyo International Military Tribunal announced its verdict, Mr. R. Pal issued his opinion (namely, Dissenting Opinion), which was up to over 1400 typed pages, disagreeing with the verdict passed by the majority of judges. The great length of his Dissenting Opinion broke the record of judges’ Dissenting Opinions (the verdict of International Military Tribunal for the Far East was 1218 pages long, unprecedented in the judicial history; while Mr. R. Pal’s personal opinion was even over 200 pages longer than the Tribunal’s verdict, totally exceptional). His Dissenting Opinion was published by A. Sanyal & Co. in Kolkata, India with the title International Military Tribunal For The Far East—Dissentient Judgment of Justice Pal.

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in the same way, with a positive and affirmative answer to those two questions, which was in firm support of the provisions of the Charter of the Tribunal. In Nuremberg, the views of the judges from the four countries including the Soviet Union, France, the United States, and the United Kingdom were in perfect accord. In the Tokyo International Military Tribunal, except for the judge from India, the other ten judges all agreed that the war of aggression is a crime in international law and that all participants should bear individual responsibility for it. We will now describe the legal argumentation and interpretation of these two issues by the two international Tribunals. Due to the fact that Nuremberg Tribunal started its proceedings about half a year earlier than the Tokyo Tribunal, and the Tokyo Tribunal decided to fully agree with and support the Nuremberg Tribunal’s legal point of view; our description below of the Nuremberg Tribunal’s opinion thus amounts to that of the common opinion of both Tribunals.23 Although the Nuremberg Tribunal admitted its obligation to comply with and apply the provisions of the Charter, it insisted that the Charter was in full compliance with international law at the time; therefore, compliance with and application of the provisions of the Charter were in compliance with and application of the provisions of international law. It was mentioned that “the Charter is not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law”.24 Thus, it could be seen that the Tribunal decided that the war of aggression had long been considered to be a criminal act in international law. It is not just a crime, but according to the Nuremberg judgment, “It is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”25 Because there 23  The International Tribunal for the Far East wrote in the verdict: “In view of the fact that in all material respects the Charters of this Tribunal and the Nuremberg Tribunal are identical, this Tribunal prefers to express its unqualified adherence to the relevant opinions of the Nuremberg Tribunal rather than by reasoning the matters anew in somewhat different language to open the door to controversy by way of conflicting interpretations of the two statements of opinions.” (See Part A, Chap. 2, Sect. [a] of Judgment of International Military Tribunal for the Far East.) 24  Judgment of the International Military Tribunal, Nuremberg, London Version, p. 38. 25  Judgment of the International Military Tribunal, Nuremberg, London Version, p. 13.

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would be no international war without aggression, and there would be no damage, destruction, adultery, rape, abuse of prisoners, civilians and other war crimes. Therefore, war of aggression contains within itself the accumulated evil of the whole and is the supreme international crime. But neither did the Nuremberg nor the Tokyo International Military Tribunal further point out: it was the exploitation and looting system of imperialism that caused the war of aggression; as long as imperialism existed, there would still be the soil producing wars of aggression. Therefore, to eradicate the war of aggression, one must destroy imperialism.26 The determination of aggression as a war crime by the Nuremberg International Military Tribunal was mainly based on the Pact of Paris, which was often known as the Kellogg-Briand Pact, signed by the countries in Paris on August 27, 1928. The Pact was ratified and attended by 63 countries, including Germany, Italy, and Japan. Therefore, the three Axis Powers, Germany, Italy, and Japan, had the obligation to comply with it.27 According to the preface of the Pact of Paris, “all changes in the relations of signatory Powers with one another should be sought only by pacific means … thus uniting the civilized nations of the world in a common renunciation of war as an instrument of their national policy”. Article I of the Pact: “The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” Article II of the Pact: “The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.” The Nuremberg International Military Tribunal has argued that the war of aggression has been considered illegal in international law since the inclusion of these provisions in the Pact of Paris concluded by the vast majority of the nations. It is not only illegal, but also criminal. The Tribunal mentioned: In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war

26  Chapter 2, The Modern war has its Root in Imperialism of War and Peace by Lenin (published by People’s Publishing House in 1960, pp. 16–22); Vol. I, pp. 167–168; Vol. II, pp. 464–466. Selected Works of Mao Tse-tung (published by People’s Publishing House in 1952). 27  The full text of the Pact of Paris is present in the Collection of International Treaties (1924–1933), pp. 373–374.

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is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are c­ ommitting a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by The Pact.28

The Nuremberg Tribunal held that it was of no importance that the Pact of Paris did not use the word “crime” directly; because the meaning of the so-called illegal, according to reasonable explanation, was equivalent to crime. Here, the Tribunal cited Hague IV of 1907 (Convention for the Prohibition of Atrocities in War) as a case in point. Although the convention did not use the word “crime”, no one ever doubted all the matters prohibited in the convention were crimes. Over the past 40 years, countless people who have committed crimes have been arrested, tried, and punished by national courts as war criminals. Therefore, the interpretation and the application of the law shall not adhere blindly to the language employed, but should also attach importance to the spirit of the legislation and the environment at that time, including the public consciousness, the progress of the general public, public opinion, and so on. In order to further prove that the Pact of Paris certainly regarded the war of aggression as an international crime, the Nuremberg International Military Tribunal also cited the previous efforts and attempts to identify the war of aggression as a crime before The Pact was concluded, the most important of which are as follows: (1) In the year 1923 the draft of a Treaty of Mutual Assistance was sponsored by the League of Nations. In Article I the Treaty declared that “aggressive war is an international crime”, and that the parties would “undertake that no one of them will be guilty of its commission”. (2) The preamble to the League of Nations 1924 Protocol for the Pacific Settlement of International Disputes (“Geneva Protocol”), declared that “a war of aggression constitutes a violation of this solidarity and is an international crime”. The Protocol was recommended to the members of the League of Nations by a unanimous resolution in the assembly of the 48 members of the League. Those members included Italy and Japan. Although the Protocol was never ratified, but as was stated by the Nuremberg Tribunal,  Judgment of the International Military Tribunal, Nuremberg, London Version, p. 39.

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“it may be regarded as strong evidence of the intention to brand aggressive war as an international crime”.29 (3) At the meeting of the Assembly of the League of Nations on 24 September 1927, all the delegations then present (including the German, the Italian, and the Japanese), unanimously adopted a declaration. The preamble to the declaration stated: “Being convinced that a war of aggression can never serve as a means of settling international disputes, and is in consequence an international crime.” (4) The unanimous resolution of February 18, 1928, of 21 American republics at the Sixth (Havana) Pan-American Conference, declared that “war of aggression constitutes an international crime against the human species”. (5) It can be seen from Article 227 of The Treaty of Versailles (to try the former German Emperor) and Article 228 (to try the major war criminals) that as early as the end of World War I, the meaning and attempt to try the initiators of war of aggression as criminals was quite obvious, although not achieved. This has already been mentioned previously. By listing the above-mentioned documents, the Nuremberg Tribunal aimed to show that the progress of human thought and consciousness had come to a stage over the past 20 years, which had created an environment. At this stage and in this environment, the signing of the Pact of Paris properly determined a general principle in international law, that is: the war of aggression is a crime in international law. As was mentioned by the Tribunal, “resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of pacts and treaties to which the Tribunal has just referred”.30 Thus, it can be seen that the Pact of Paris did not suddenly change the old principle of international law or create new principles of international law, rather, it just timely and clearly announced a present mature principle of international law. The International Military Tribunal for the Far East fully agreed with the determination and interpretation of the Pact of Paris by the Nuremberg International Military Tribunal. Therefore, it also rejected the defendant lawyers’ claims that war of aggression had not been declared illegal when  Judgment of the International Military Tribunal, Nuremberg, London Version, p. 40.  Judgment of the International Military Tribunal, Nuremberg, London Version, p. 41.

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the defendants planned, launched, or participated in the war of aggression; and according to the principle of “non-retroactivity of law”, the defendants should be innocent. That defense was strongly refuted by the International Military Tribunal for the Far East. 1.5.5   Individual Responsibility Another stinging attack launched by the defense attorneys over the jurisdiction of the Nuremberg and Tokyo tribunals is the individual responsibility of war criminals, on which the opinions of the international law scholars and writers converge with those of the defense attorneys. There has not been too much objection or doubt about whether those criminals should be held individually responsible for War Crimes, namely, violations against the laws or customs of war and Crimes against Peace. What they objected to or suspected was Crimes against Peace. Those who took a negative attitude on the question of whether a crime was committed during the course of the war of aggression have also taken a negative stance on whether the individual was responsible for Crimes against Peace. They stood for a conservative, or even outdated, view of traditional international law, which was firmly rejected by the Nuremberg trials and the International Military Tribunal for the Far East. Four reasons are summed up for objections to personal responsibilities in Crimes against Peace from defense attorneys and some international law scholars. They are as follows: (1) The war of aggression is the “act of state”, which is the exercise of state sovereignty and the state should be held responsible for it. Those who are involved are not responsible but merely obey or carry out the policy and order of the state. Therefore, they should be immune from “individual responsibility”. (2) The war of aggression is a crime in international law which is concerned with the actions of sovereign states and provides no punishment for individuals. Therefore, acts in violation of international law shall not be punished. (3) International law imposes punishments for states violating it, but imposes no punishments for individuals. Therefore, it is groundless and impracticable to punish individuals. (4) According to the principles of criminal law, criminals must commit the crime with “criminal minds”. It is impossible for an individual to commit crimes with a criminal mind in the war of aggression.

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Those four arguments were groundless and were strongly rejected in the Nuremberg Tribunal and the Tokyo Tribunal. In response to the first opposition that the war of aggression is an “act of state” and the criminals should be immune from “individual responsibility”, the Judgment of the Nuremberg Tribunal replied “that international law imposes duties and liabilities upon individuals as well as upon states has long been recognized”.31 After quoting the Ex parte Quirin case, the judgment continued to claim that “individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Of course, by saying that individuals should be responsible for the war of aggression, it is not to say that the state shall not be held responsible for it. On the contrary, the state, since ancient times, had been liable for assuming the responsibility for starting a war of aggression whereas to make compensation was the most common way of fulfilling the responsibility. However, we should note here that the responsibility of the state should now be civil in nature (i.e. to compensate the other party for the loss suffered by the war). Compensation as the criminal punishment of the enemy state is already an outdated doctrine and has gradually been abandoned for international practice.32 Therefore, to stop war and ­aggression, we must set about increasing criminal responsibility of the  Judgement of Nuremberg Trial, p. 41 in London version, p. 68 in Chinese version.  It has long been a matter of arguing whether the state has criminal responsibility. In the early stage, international law scholars usually contended that the state could commit crimes and therefore was named “state-as-a-criminal” (refer to Van Vollenhoven, The Three Stages in the Evolution of the Law of Nations, p. 8ff.). In the case of treaties of defeated nations, the provisions of ceding territories and paying indemnities are often deemed as “punitive” provisions. However, most recent international law scholars and writers mostly opposed “state-asa-criminal”. In the Nuremberg Trial, the lead British prosecutor Hartley Shawcross once adopted the old view so that he put the focus on the defendant war criminals on the crime of “accomplice” and “abetting”. That the defendants used to help and abet their country to commit crimes. In that way, the state had become the subject of the crime, or at least committed the crime like the criminals. The Nuremberg Trial did not adopt Shawcross’s view. The Judgment said that crimes against international law are committed by “men”, not by “abstract entities” (state). It clearly indicates that the court did not agree with the “state-asa-criminal” and did not accept it, which was in line with the standpoint of the international law scholars in general. It is without doubt that Shawcross’s argument stands for the viewpoint of a few conservative international law scholars (references of Shawcross’s gravamen are to court records of the Nuremberg Trial, pp. 833–835). 31 32

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adventurists and the militants. It is not fair to aggravate the civil responsibility of the state because the compensation is borne by the overwhelming majority of the people in the entire nation, who are largely driven in the war of aggression. They are not interested in invading other countries and exploiting benefits from it. Ordinary people of all nations yearn for peace and this may be a reasonable explanation why people are serious toward the punishment of the criminals while more tolerant toward the compensation. The second opposition that international law cannot punish individuals is also untenable. It has been a long time in punishing the individuals under international law and the precedent is countless. For example, piracy and human trafficking have always been considered crimes of international law, and any country can arrest and punish those criminals. In fact, the so-called war crimes are personal violations of international law, the trial and punishment is not subject to the general rules of domestic criminal law. International law is directly cited in international courts; in domestic courts, however, it is cited in domestic legal form to convert international law into domestic law by generalization or enumeration.33 In essence, however, these rules of punishing war criminals are derived from the Hague Conventions and other laws, regulations and customs of war internationally recognized, which were undoubtedly international law. The third opposition that international law cannot punish them because it does not impose sanctions on individuals is also unfounded. 33  Some countries put all the principles and practices of international law on the act of war in all or in part of their manuals on criminal law and war rules in peacetime (such as Convention with respect to the Laws and Customs of War on Land in Britain, Rules of Land Warfare in the United States). Some countries generally recognize the rules of international law in the form of domestic law, and even recognize the effectiveness of international law in the Constitution (such as the German Democratic Republic). Some countries did not enact laws or orders of single-trial war criminals until the trial of war criminals after the war, and incorporated part of the international law on war crimes in general or in enumeration (such as the Soviet Union, France, and Canada). The Decision to Deal with War Criminals in Custody in the Japanese War of Aggression Against China passed by the Standing Committee of the National People’s Congress on April 25, 1956, also belongs in this category. Some countries have stipulated the law or orders of the trial of the traitor as well (e.g. Czechoslovakia, Poland, Romania, Bulgaria). The way of acceptance may vary, but the contents of law and orders of war crimes are mostly taken from the Hague Convention, the Geneva Conventions, and rules and practices of war generally recognized by the international world, and thus are essentially international law rather than national law.

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Over 300 years ago, Grotius, the founder of international law admired by westerners, agreed that anyone who captured or tried a man who went against the international law had the right to execute him. Since a death penalty could be imposed, a lighter punishment may also apply. Moreover, it had been a common and unquestioned practice that war criminals were imposed with severe or light punishment with or without any trail of military authorities or domestic courts. No one has raised any doubt about it. Therefore, it is also unfounded to claim that the prisoner is not personally responsible for the lack of sanctions imposed by the international law against individuals. The fourth opposition that the defendants did not commit crimes because they did not know international law of the time and lacked in “criminal mind” subjectively were also rejected by the Tribunal. The court’s response to this fallacy was: first, each individual shall be obliged to be informed of and to abide by all laws in force (international law included), in which lack of knowledge can never be a defense for exempting such liabilities34; second, when the defendants were engaged in an aggressive war, their knowledge and social status should never fail to grasp or notice that what they were doing was wrong and guilty even though they did not exactly know the seriousness of invasion in respect of international law. They cannot be said to lack “criminal intention”. The Judgment of the Nuremberg Trials stated that “so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished”.35 After resolutely refuting all justification for defending personal responsibility, the two international tribunals unanimously concluded that those who participated in the war of aggression, whether at any stage of planning, preparing, initiating, or waging such wars, have to bear personal responsibility and should be treated as war criminals. That is the major principle in the international law—personal responsibility in the war of aggression that is recognized and proclaimed in the Charter and the Judgment of the International Military Tribunal and of the International Military Tribunal For The Far East. 34  Baron Wright, “War Crimes under International Law”, Law Quarterly Review, Vol. 62 (1946), pp. 40, 51. Jackson, the prosecutor of Nuremberg Trial once said, “The progress of law is paid by those who forecast wrongly or understand too late.” (See Transcripts of Nuremberg Trial, p. 116.) 35  Judgement of the Nuremberg Trial, p. 39 in London version, p. 64 in Chinese version.

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1.5.6   Official Position and Orders of the Superiors Two questions about principles in need of illustration and clarification that are closely related to or derived from the above principle are: (1) the personal official position and (2) the order of the superior officials. 1.5.6.1 Official Position Article 7 of the Tokyo Charter declared that “the official position of Defendants, whether as heads of State, or responsible officials in Government departments, shall not be considered as freeing them from responsibility, or mitigating-punishment”. Article 6 of Charter of the International Military Tribunal for the Far East provided that “Neither the official position, at any time, of an accused … shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged” The basic meaning of the two provisions are similar. A new principle of international law regarding the trial of war criminals is confirmed and declared herein, that is: all people, from the head of state or Prime Minister, to ordinary soldiers or civilians, as long as he is guilty of any war crimes, shall be subject to personal responsibility and shall be treated as a war criminal for trial and punishment. In old international law, the head of a state is regarded as sacred and inviolable so that in any case he shall not be tried by a foreign court or an international tribunal. This was firmly advocated by the representatives of the United States and Japan in Commission of Responsibility, which was established by the Allied governments at the end of World War I (see Footnote 1). But their claims were not adopted at the Paris Peace Conference. Article 227 of Treaty of Versailles expressly provided that “The Allied and Associated Powers publicly arraign William II of Hohenzollern, former German Emperor, for a supreme offence against international morality and the sanctity of treaties.” Although this provision has become empty talk because the Dutch government refused extradition and the centrifugal separation between the Allies, but a head of state being sacred and inviolable has started shaking in theory. As for the other major responsible war criminals below the heads of state, article 228 of the Treaty of Versailles also expressly provided that “The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.” It seems that this article has also become merely a scrap of paper, given the result of the farce-like

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Leipzig War Crimes Trials (only six low-level officers were sentenced to imprisonment). It can be concluded that before World War II, the object of a war criminal trial was actually limited to soldiers or ordinary officers, more senior officials had never been subject to trial, not to mention the head of a state or government leaders. Things have changed since World War II.  As the Charter of the International Military Tribunal and the Charter of the International Military Tribunal for the Far East expressly stipulated, the individual responsibility and the fact that the court has complied with this provision in both tribunals, the principle of equality of all in the responsibility of war crimes was established (at the time of the trial), theoretically, at least on the surface. Göring and 22 Class-A war criminals, who were tried in the Nuremberg trials, were the most important leaders of Nazi Germany (Hitler was dead at that time or else he would have been put on trial). Twenty-eight Class-A war criminals standing before the Tokyo Tribunal were also among the most important leaders of fascist Japan, 4 of whom were former Prime Ministers. In the Nuremberg trials, 12 people were sentenced to death by hanging, 3 to life imprisonment, 4 to imprisonment, and 3 were acquitted.36 In the Tokyo Tribunal, 7 people were sentenced to be hanged, 16 36   Twelve people were sentenced to hanging by the Nuremberg Trial: Göring, Reichsmarschall, Commander-in-Chief of the Luftwaffe (air force), Plenipotentiary of the Four-Year Plan, Vice-Chancellor of Germany, the first successor designated by Hitler; Ribbentrop. Diplomatic Moderator of Nazi Germany, German Ambassador to the United Kingdom, Foreign Minister of Nazi Germany from 1938 to Germany’s surrender; Keitel, Chief of the Armed Force High Command, Chief of the War Ministry’s Armed Forces Office from 1935 to Germany’s surrender; Kaltenbrunner, an Obergruppenführer (general) in the Schutzstaffel (SS), trusted assistant of head of special agent, the leader of Austrian SS and Chief of the Reich Main Security Office since 1935; Rosenberg, host “spiritual training” of Nazi Germany, Reich Minister for the Occupied Eastern Territories from 1941 to Germany’s surrender, theorist, and propagandist of fascism and racial superiority; Frank, Minster of Justice since 1934, Governor-General of Poland from 1939 until its liberation; Frick, Minister of the Interior since 1934, governor of the Protectorate of Bohemia and Moravia from 1943 to 1944; Seyss-Inquart, an important leader of the Nazi Party, minister without portfolio and the Governor of Austria, Deputy-Governor of Austria, and commissioner of the Occupied Polish Territory from 1939 until the surrender of Poland; Streicher, an important leader of Nazi Germany and party affairs, editor of Der Stürmer, anti-Semitism thinker and propagandist, organizer and leader persecuting Jews; Sauckel, General in the SS from 1942 to Germany’s surrender, Supervisor for Labour Deployment, organizer of “Slave and forced Labour”; Jodl, General, Chief of the Operations Staff of the Armed Forces High

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to life imprisonment, 2 to set term of imprisonment, none was acquitted of a charge—20 or 30 years ago, it is impossible to imagine the massive trials and severe sanctions on the state leaders which have never before been seen in history. Those two trials were not without shortcomings, but it was in the law to implement the principle of “individual responsibility” and “official position shall not be sufficient to free such accused from responsibility for any crime”. 1.5.6.2 Orders of the Superiors Another issue closely related to the principle of “individual responsibility” is the orders from the superiors. This was also one of the reasons to absolve the defendants from guilt, especially when they were charged with war crimes and Crimes against Humanity. Command from 1935, Chief of Operation Staff from 1939 to Germany’s surrender; Bormann, Chief of Staff of Hess, director of the Nazi Party office, Hitler’s confidential secretary and trusted adviser from 1943 to Germany’s surrender—judgment by default. Three people were sentenced to life imprisonment: Hess, Vice President of the Nazi Party and minister without portfolio since 1933, since 1938 served as a member of Hitler’s secret cabinet, defense commissioner since 1939, the second successor designated by Hitler; Funk, Reich Minister of Economics from 1938 to Germany’s surrender, President of the Reichsbank and Chief Plenipotentiary for Economics, defense commissioner, member of the Central Planning Board; and Raeder, Grand Admiral, Commander-in-Chief of the Reichsmarine from 1935 to 1943, Admiral Inspector from 1943 to the surrender of Germany. Four people were sentenced to set term of imprisonment: Von Schirach, the organizer and head of the Hitler Youth, Gauleiter and Reichsstatthalter (“Reich Governor”) of Vienna since 1940; Speer, Hitler’s close comrade-in-arms, Reich Minister of Armaments from 1942 to 1943, Reich Minister of Armaments and War Production from 1943 to the surrender of Germany, one of the leaders of the central planning committee; Von Neurath, Foreign Minister of Germany from 1932 to 1938, Reichsprotektor of Bohemia and Moravia from 1939 to 1943; and Doenitz, Admiral, senior submarine officer from 1936 to 1942, Commander-in-Chief of the Navy from 1943 to 1945, Hitler’s successor as head of state for a short period in May 1945. Three people were found to be not guilty: Schacht, President of the Reichsbank, Minister of Economics, supervisor for military economics, minister without portfolio, advisor to Hitler’s economic and financial problems since 1933; Von Papen, organizer and leader of foreign espionage and sabotage activities, ambassador to Vienna, ambassador to Turkey and other staffs since 1934; and Fritzsche, propaganda activist, Goebbels’s close colleague, Minister of Reich Ministry of Public Enlightenment and Propaganda, head of the Drahtloser Dienst (the wireless news service) and other staff. Soviet judges have declared that they disagreed with the court’s declaration that Schacht, Papen, and Fritzsche were acquitted and only were sentenced to life imprisonment. He had made his disagreement as a dissenting opinion attached to the court judgment. As to the punishment of the International Military Tribunal for the Far East, a detailed discussion will follow later.

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The question went like this: if a person, such as a soldier or a subordinate officer, did not act at his own discretion but followed the orders of his government or of a superior, shall he be free from responsibility and punishment? In the past, the answers to this question were quite confusing. Some famous international jurists in Western countries, such as Kelson, Smith, and the like, advocated that orders of the superiors could make war criminals free from punishment (see Footnote 1). Their main consideration was the rigid discipline in the army and the danger of disobeying orders for those resisters, which were also stipulated in the Manual of Military Law (Article 443) and the Rules of Land Warfare (Article 366) before 1944. But in 1944, revisions were made to both, so as to hold the opposite opinions—that orders from the superiors could not free criminals from punishment. This showed that the former international law jurists and domestic legislation were wavering on this issue. The Nuremberg Trials and the International Military Tribunal for the Far East adopted a firm and resolute attitude toward this issue. Article 8 of Charter of the International Military Tribunal provided that “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.” Article 6 of the Charter of the International Military Tribunal for the Far East also provided that “Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.” The reason why the two tribunals made such provision is that one shall only obey legal orders but not illegal and criminal orders. He must be faced with an unavoidable responsibility for violating the obvious and undeniable rules of war by obeying his orders. Otherwise, it is the head of state or several superiors alone that shall be liable for certain war crimes by pushing the responsibility to those who issued orders, which would cause a great damage to the effective implementation of the regulations of war. Thus, any person who commits an act that violates the rules of war or humanity, whether out of his own mind or by following orders of a superior, shall be deemed as a war criminal and punished accordingly. However, in the case of a war crime acting pursuant to superior orders, the danger of

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defying the superior order may be considered in mitigation of punishment. For an ordinary soldier or a subordinate officer, the danger of being severely punished by disobeying orders is great, and there is little room for defying. For a Senior Commander or a civilian official or common person, the danger is not so great that he would lose no more than his position or business. Sometimes it is the resistance of executing an illegal order that can lead to revocation or revision of that order. Therefore, when imposing the penalty, the court should take into account the different and specific circumstances of each war criminal. As for the state leaders and senior officials, there is no saying for the doctrine of “superior orders”, because if they do not agree with an illegal order or policy, they can automatically resign, never will they have any risk of life or punishment. In fact, they are the makers and issuers of such illegal orders. In summary, if an ordinary soldier or a subordinate officer is in violation of the laws and regulations of war or commits a Crime against Humanity, the fact that the defendant acted pursuant to superior orders shall not free him from responsibility, but it may be considered in mitigation of punishment. However, that is not the case when the defendant commits a Crime against Peace. On the purely theoretical basis, people who participate in the planning, preparation, initiation, and waging of wars of aggression all commit Crimes against Peace, and because superior orders cannot free them from punishment, so when an ordinary soldier or officer was ordered to join the war of aggression, he was guilty of a Crime against Peace. However, the prosecuting and judicial organs of the Allied Powers, whether domestic or international, have not adhered to this principle. The Allied Powers did not prosecute general soldiers and officers for their participation in the war of aggression, as it was not their business to wage the war of aggression. Additionally, it was difficult for them to distinguish whether it was a war of aggression in their position and to their knowledge. Thus, in the practice of World War II, the Allied Powers repatriated millions of German and Japanese POWs to their homeland but did not go so far as detention and prosecution. Only a small number of the war criminals committing crimes violating laws and regulations of war or Crimes against Humanity would be arrested and prosecuted as Class-C war criminals, and were usually tried by domestic military tribunals rather than international military tribunals. Hence, one can see that in the extensive practices after World War II, only a small number of state leaders were prosecuted and brought for trial for crimes against peace (the crime of aggression), namely, the heads of

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government, leading politicians, warlords, prominent arms and munitions manufacturers, the famous war instigators, the commander of the important theaters of war, and other superiors who had the primary responsibility for the initiation and waging of the war of aggression.

1.6   Class-A War Criminals and International Tribunal There are several minor issues in legal practice that need to be explained, that is, what is “Class-A war criminals”? What is the difference between Class-A war criminals and Class-B war criminals and Class-C war criminals? Why is it that Class-A war criminals are usually tried in international tribunals while the other two types are by domestic tribunals (tribunals of the country of crime)? It must be pointed out that it is a usual practice in the general academic treatises and news report to classify the war criminals into Class-A, -B, and -C but not so in the formal international documents. In the Nuremberg Charter signed by the United Kingdom, the United States, France, and the Soviet Union on August 8, 1945, and the Nuremberg Charter, they used the words “to prosecute and punish the main war criminals of the European Axis”. While in the Charter of the International Military Tribunal, they used the words “the Prosecution and Punishment of the Major War Criminals of the European Axis”. In the announcement to establish the International Military Tribunal for the Far East and the Charter of the Tokyo Trial issued by the Allied Supreme Command of Tokyo on January 19, 1946, they used the words “the just and prompt trial and punishment of the major war criminals in the Far East”. In other formal international documents, they used the words “Major war criminals” rather than “Class-A war criminals”. In everyday idioms, academic treatises, as well as news reports, people often called such war criminals “Class-A war criminals” for the sake of convenience and conspicuousness. Class-A war criminals were ­characterized by two traits: one was that they held a high position with great power and fell into the category of state leaders; the other was that they all committed “Class-A” war crimes—crimes against peace, that is the crime of planning, preparation, initiation, and waging the war of aggression, which was considered as the “supreme international crime” in the opinion of the tribunal as “it contains within itself the accumulated evil of the whole”. Those two traits were interconnected because an individual without a high

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position or great power would not have a role in influencing national policy of aggression or war strategy. Therefore, those “Class-A war criminals” were mostly “culprits” of the war of aggression. Although these “culprits” were often charged with other war crimes, such as war crimes and Crimes against Humanity, every individual was charged with crimes against peace, with no exception. Those were the main accusations against them, others were merely secondary. According to the general international practice, the majority of Class-A war criminals were tried by the international military tribunals. As to why they should be brought to the international tribunals, no documents or treaties as an explanation, authoritative or detailed enough, have been found. Peace is an inseparable task shared by all human beings and security relies on maintenance by the community. Therefore, the crimes of aggression and war against peace not only concern the neighboring countries, but also each participating country. The scourge of such crime is beyond geographical boundaries. It is the crime that concerns most countries and most people, and therefore should be sentenced collectively by the international tribunals, and not by domestic tribunals of any one country alone. Class-B and Class-C war criminals committing war crimes and Crimes against Humanity were tried by military tribunals in the country of crime (i.e. the countries in which their abominable deeds were done) or local military tribunal as an international custom. On the one hand, considering the lower position of such war criminals and the simplicity of the crime, it is unnecessary for the international tribunal to intervene. On the other hand, there are two major advantages to extradite such war criminals to the military tribunals in the country of crime or local military tribunal: first, because the atrocities committed by them were carried out in a certain region, the trial in the area can not only carry out the criminal law principle of “territorial jurisdiction for all crimes”, but also make it more convenient for the collection of evidence, witness summons, and on-the-­spot investigation; second, it makes the local people who have a deeply ingrained memory of atrocities of war seek psychological and spiritual comfort in sanctions against those war criminals. For all these reasons, the Allied Powers have emphasized that war criminals with brutal atrocities must be extradited to the place where the atrocities occurred, and warned the neutral countries against asylum for war criminals in all the declarations and statements.37 37  For these declarations, notes, and statements, see S.  Glueck, War Criminals: Their Prosecution and Punishment, Appendix B, pp. 109–113.

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The vastness of the trial of war criminals and the number of cases were prominent at the end of World War II.  On the international front, the German Class-A war criminals were tried by the Nuremberg Trials, and the Japanese Class-A war criminals were tried by the Tokyo Trials; on the domestic front, the number of cases of Class-B and Class-C war criminals in the domestic tribunals of the Allied Powers was astounding. Therefore, it is not surprising to find that some countries (such as the United States) tried more than 1000 cases and many other countries only hundreds or dozens of cases.38 Trials after World War II have clarified the international law principles of war crimes and the trial of war criminals to a large extent, and also have rendered great change. In the past, this part of international principle was quite confusing and fuzzy so that the then international scholars and writers had bitter arguments over certain issues. Those principles were basically affirmed and fully developed after the rich practice of World War II, particularly following the Nuremberg Trails and the Tokyo Trials.39 This chapter deals with the process and reasons of clarification, affirmation, and development of the principles of international law, which are the basic principles that the Tokyo Trial has consistently exercised in its jurisdiction.

38  We do not yet have accurate and comprehensive statistics or reports on the number of cases of brutality committed by Class-B and Class-C war criminals in the national military tribunals after World War II. According to Time, published in the United States on December 24, 1964, when Germany was occupied, the military tribunals of the Allied Powers had tried 5025 Nazi war criminals, of which 486 were sentenced to death; the German Tribunal has tried 12,882 Nazi war criminals, of which 5243 were sentenced, 12 were sentenced to death, and 76 to life imprisonment; the Soviet Union Tribunal has sentenced 10,000 Nazi war criminals. There is no doubt as to the reliability of this report and its estimate. However, the high number of cases and severity of punishment of German war criminals and Japanese war criminals was most striking after World War II, which was totally different from that after World War I. 39  Mei Ju-ao, The New Concept of War Crimes—Summary of the Main Changes and Developments of the Principles of International Law After World War II, Academic Monthly, 1957, pp. 57–66.

CHAPTER 2

Charter and Organization of the International Military Tribunal for the Far East

2.1   Introduction to the Charter Military Tribunal for the Far East

of the International

The Charter of the International Military Tribunal for the Far East was promulgated by the Supreme Commander for the Allied Powers at Tokyo based on a series of international documents, such as the Potsdam Declaration, Japan’s Instrument of Surrender, and the decision of the Moscow Conference. It was published in a Special Proclamation on January 19, 1946. The Nuremberg Charter, different from the Tokyo Charter, was directly formulated by the United States, the United Kingdom, the Soviet Union, and France in the London Agreement as an appendix published on August 8, 1945.1 After the issuance of the Tokyo Charter, the Supreme Commander of the Allied Powers ordered a revision by adding another two nominations of judges from India and the Philippines for the Tokyo Tribunal apart from the nine countries who signed the Instrument of Surrender. The revision was conducted before the tribunal opened its session, and the Charter was revised once. During the existence of that tribunal, the Tokyo Charter had been serving as the fundamental guiding principle for organizing of the tribunal and its trial. 1

 Cf. Sect. 1.4, Chap. 1.

© Shanghai Jiao Tong University Press 2018 M. Ju-ao, The Tokyo Trial and War Crimes in Asia, https://doi.org/10.1007/978-981-10-7404-2_2

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The Tokyo Charter has five chapters in 17 articles. Some of the provisions are about the organization, personnel, and administration of the tribunal, while others are about legal matters. In the articles regarding legal matters, some are substantial, such as the powers, the tribunal’s jurisdiction over persons and offenses, and punishment; some are procedural, such as the course of trial proceedings, the conduct of trial, admissibility of evidence, defense, punishments, and implementation of punishments. Section 1 of the Charter stipulates the constitution of the tribunal in four articles. Article 1 explains the purpose and mission of establishing the tribunal is “for the just and prompt trial and punishment of the major war criminals in the Far East”. It must be pointed out that when it was established, the tribunal had intended to try all the major criminals that were arrested in the Far East regardless of their nationalities, although all of the war criminals who were put on trial were Japanese. In this sense, these articles employed “the major war criminals in the Far East” rather than “the Japanese war criminals”. On September 11, 1945, 10 days after Japan surrendered, the General Headquarters of the Supreme Commander of the Allied Powers published a list of 39 Class-A war criminals who were to be arrested, 27 of which were Japanese, including Hideki Tō jō while the rest were non-Japanese including 3 Germans, 3 Filipinos, 2 Australians, and 1 each for Burmese, Dutch, Thai, and American. The 12 non-Japanese war criminals included José P. Laurel, the President of the Second Philippine Republic, a Japanese puppet state; Benigno Aquino Sr., the Speaker of the National Assembly of Laurel’s regime; Jorge B.  Vargas, Laurel’s ambassador to Japan; Heinrich Georg Stahmer, German’s ambassador to Japan; Colonel Alfred Kretschmer, German Military Attaché to the Embassy in Japan; Luang Vichitr Vadhakar, the Thai Ambassador to Japan; and Dr. Thein Maung, the ambassador of the puppet State of Burma to Japan. All of them were arrested and intended to be tried by the Tokyo Tribunal. However, some of them could not be classified as Class-A war criminals or had asked to be extradited to their home countries. The Tribunal also considered the substantial and technical difficulties in language, and all of them were released or repatriated. In the second list of Class-A war criminals (11 people) issued on November 11, 1945, the third list (59 people) on December 2, and the fourth list (9 people) on December 2, all of the arrested were major Japanese war criminals. The Tokyo Tribunal selected 28 major war

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c­ riminals from the total 118. All war criminals tried were Japanese, but the Charter stipulated the “war criminals for the Far East”, as the Nuremberg Tribunal did in which only the German war criminals were tried although its Charter documented the “major war criminals of the European Axis”. Additionally, Article 1 of the Charter also stipulated that the permanent seat of the Tribunal was in Tokyo. Article 2 pertains to the selection of judges; Article 4 stipulates the quorum of the judges, session, voting, and the effect of absence, which will be explained in Sect. 2.3 of this chapter. Article 3 stipulates the appointment and powers of the Tribunal’s President and General Secretary and the administrative work of the secretariat, which will be discussed in Sects. 2.3 and 2.6 of this chapter. Section 2 (Article 5–8) pertains to the “jurisdiction and general provisions”. The jurisdiction over persons and offenses in Article 5 is the precondition of the establishment and existence of the Tokyo Tribunal, a major issue in the international law which fueled debates among the legal scholars and experts and the defense lawyers and was discussed in Sect. 1.5 of Chap. 1. Article 7 stipulates the Tribunal may have the powers to draft rules of procedure. The rules of procedure were promulgated by the meeting of the judges and published on April 25, 1946. Chapter 4 will cover a full account of the rules. Article 8 clarifies the appointment and powers of the Chief of the Counsel and the Associate Counsel, which will be detailed in Sect. 2.4 of this chapter. Section 3 (Article 9–10) provides “fair trial for accused”. To ensure a fair trial for the accused, Article 9 stipulates some items that need to be observed: the indictment shall be furnished as required, with adequate time for defense with a copy of the indictment and the Charter which should be translated into a language understood by the accused (in Japanese) (Item A of Article 9); all the proceedings (in oral and writing) shall be provided in English and Japanese (Item B of Article 9); the accused shall have the right to be represented by counsel of his own selection or appointed by the Tribunal (Item C of Article 9); the accused shall have the right through himself or through his counsel to conduct his defense, including the right to examine any witnesses, and to ask the Tribunal to search or access any evidence and documents that can facilitate advantages for him (Items D and E of Article 9). All these matters shall be expounded in Sects. 2.2 and 2.3 of this chapter and Chap. 4.

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Article 10 stipulates the applications, motions, and other procedures before trial, which are mere formalities irrelevant to the topic and unnecessary for the Charter. Section 4 pertains to “powers of Tribunal and conduct of trial” (Articles 11–15), which covers a wide range of matters that can be deemed procedural. Article 11 provides the powers of the Tribunal. However, the “power” referred to is not about the jurisdiction of the Tribunal (the most significant has been detailed in Chap. 1), but the administrative authority possessed by the Tribunal, such as “to summon the witness”, “to interrogate the accused and the witness”, “to require the production of evidence and documents”, “to require an oath or declaration of the witness” and “to appoint officers for the carrying out of any task designated by the Tribunal”. Article 12, although titled “Conduct of Trial”, pertains not to the procedures, phases, or course of the whole trial (as stipulated in Article 15), but the measures and powers that the Tribunal should take to ensure a fair and swift trial during the course of trial: the Tribunal shall take steps to confine the trial (whether in representation, production of evidence, or defense) strictly to the hearing of the issues raised by the charges and prevent any representation that is irrelevant with the case and any action that may delay the trial; the Tribunal shall maintain the order of the trial and impose appropriate punishment on any contumacy, including exclusion from some or all further proceedings. Additionally, the Tribunal has the right to determine the mental and physical capacity of any accused to proceed to trial. Article 13 pertains to the evidence, which, in a detailed manner, specifies a variety of evidence items that may be admitted and the procedures and formats for producing and documenting such evidence. Generally, the Tribunal is not bound by technical rules of evidence; the Tribunal will adopt expeditious and non-technical procedures to the greatest possible extent and admit any evidence which it deems to have probative value. Although it was meant to ensure a swift and concise trial, most judges could not be immune to the impact of highly technical and complicated laws and regulations of evidence of the Anglo-American system. The trial did not proceed in as swift a way as expected. The reasons that could account for the delay of the trial, which eventually proceeded for two and a half years, were plentiful, of which the fastidious and cumbersome procedure of evidence production was remarkable, and Chap. 4 will focus on this issue.

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Article 14 specifies the place of trial, which provides that the first trial be held in Tokyo, the permanent seat of the Tribunal, and any subsequent trials will be held at such places as the Tribunal decides. However, during the entire existence of the Tribunal, the trial was conducted only in Tokyo, with this article never being applied. Article 15 stipulates the course of the trial proceedings, which is of great significance. It outlines the general principles for the procedures, phases, and course of the trial: the prosecutor will read the indictment; the Tribunal will ask the accused whether he pleads “guilty” or not; the general prosecutor and each of the accused will make a concise opening statement (冒頭陳 述 in Japanese); the prosecutor and the defense lawyers will offer evidence, including witnesses and documents; the accused and the prosecutor examine each witness and counter-examine such witnesses and documents; the accused or his defense lawyer will address the Tribunal; the prosecutor will then present the closing statement (最終弁論 in Japanese) to the Tribunal; finally, the Tribunal will deliver judgment and announce a sentence. This article only provides outlines and major procedures for the trial, but the actual prosecution was much more detailed and complicated, which will be discussed in Chap. 4. Section 5, the final part of the Charter, is about judgment and sentencing (Articles 16–17). Article 16 mandates that the Tribunal has the power to impose death or such other punishment upon an accused that it may deem just. Because the Tribunal is entitled to impose a death sentence, it is natural for it to impose any other punishments because the death punishment is the most severe punishment in criminal law; a tribunal that has the power to deliver a death sentence is surely entitled to imposing less severe punishments. Although it stipulates the power to impose the death penalty, the decision as to whether the Tribunal should utilize it and impose such a penalty became another issue, which entailed a fierce debate. Besides Radhabinod Pal, the Indian judge who claimed all the accused should be released, a small number of them whose home countries had abolished the death penalty, also proposed that the Tribunal impose life sentences as the maximum punishment rather than death on those criminals. Nonetheless, their proposition was not endorsed by the majority of judges and the Tribunal still sentenced seven war criminals with the death penalty by hanging due to their graver crimes. Furthermore, some judges (including the judges who advocated no application of the death penalty clause) refused to vote for the death penalty, while any punishment imposed shall be agreed to by

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six affirmative votes, the number of death penalty sentences was much smaller than that made by the Nuremberg Tribunal. Sir William Webb, the presiding judge from Australia, proposed a ludicrous idea that all the accused would be exiled to an isolated island as the United Kingdom, the Russian Empire, and Austria did to Napoleon I. However, such a peculiar idea invited less attention from the judges; he not only refused to vote for capital punishment for the accused delivered by the Tribunal, but also made his proposition public in his “dissenting opinion” of the judgment. The dissenting opinions of Webb and other judges and the actual voting of the Tribunal regarding punishment and sentencing will be discussed in later sections. Article 17 pertains to the judgment and review, which stipulates that the judgment shall be delivered with reasons on which it is based and announced in open court. It was a common practice, and the Tribunal should not exclude it. In fact, with a full length of over 1200 pages, the judgment by the Tribunal covered all types of reasons on which it was based and took six and a half days to read out, substantially meeting the requirement of this article and setting unprecedented history of judicial practices across the world. Article 17 also requires that the trial record be transmitted to the Supreme Commander for the Allied Powers and the sentence be carried out in accordance with the order of the Supreme Commander for the Allied Powers who may reduce or otherwise alter the sentence, except to increase its severity. It comes to an interesting legal issue: because the Supreme Commander for the Allied Powers has the power to change (reduce) the punishment agreed upon by the Tribunal, can the judgment be a final one or last one in the aspect of jurisprudence? If so, what kind of power does the Supreme Commander possess in jurisprudence? The Tribunal’s judgment should be deemed as final. The issue whether the judgment is final lies in the party’s right to appeal against such judgment and the institution that the party can appeal to and have the power to revoke it. Obviously, the parties, whether the defendants or the prosecution, could not appeal against the Tribunal’s judgment and to any such institution (including the Supreme Commander). The power that the Supreme Commander possessed to reduce punishment is a type of administrative clemency power, as a head of state possesses regarding the punishment imposed by the state’s Supreme Court. This clemency power or the power to reduce a penalty does not impair the conclusion that “the

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judgment of the original court is final” in jurisprudence. In the Nuremberg Trial, the Nuremberg Charter recommends that those powers be exercised in accordance with the orders of the Control Council for Germany.2 However, the judgment made by the Nuremberg Tribunal, similar to that of the Tokyo Tribunal, should be considered final and not appealable. Although the two charters stipulate the powers of reducing punishment for the Control Council and the Supreme Commander respectively, those powers were never exercised. In Nuremberg, the penalties imposed on the accused were fully implemented based on the judgment of the Tribunal. In Tokyo, the Supreme Commander at that time (at the end of 1948), who had a desire to protect the Japanese war criminals, dared not outright change the judgment in the defiance of the world. Therefore, the punishments upon the Japanese war criminals were implemented accordingly. On December 23, 1948, when the Japanese war criminals were hanged, Douglas MacArthur issued a declaration to the media that “I have no reason to change the penalties imposed by the Tribunal. If such a rigorous procedure and the learned judges cannot be trusted, there are no trustworthy things in the world.”3 The above section is a concise account of the Tokyo Charter and some of its articles. As to the articles about the Tribunal’s organization, the following chapters and sections will apply and explain them if necessary. For the articles of procedures, Chap. 4 will give details if mentioned as references.

2.2   The Place of the Tribunal and Its Arrangements Article 1 of the Tokyo Charter stipulates the permanent seat of the Tribunal is in Tokyo. However, Article 14 also provides that other subsequent trials can be held at such places as the Tribunal decides, with the exception of  Article 29 of the Nuremberg Charter.  For his pompous declaration of executing the judgment of the Tokyo Tribunal, see the newspapers published in Tokyo and other cities in Japan. However, shortly following his declaration, he commanded the chief prosecutor to release the remaining Class-A war criminals from Sugamo Prison with the excuse of “a lack of sufficient evidence to prosecute them”. Less than one year after the judgment was made, he released a so-called fifth order without any authorization, provided that those war criminals sentenced by the Tokyo Tribunal could be released by a majority vote from the Allied Powers after they had served one third of their sentence. See the declaration of Zhou Enlai, then China’s Prime Minister, on May 15, 1950. 2 3

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the first trial. The two provisions seem contradictory. Yet, the fact is not. For the purpose of publicizing the trial and other reasons, the Tribunal should have a permanent and stable place; but in consideration of the convenience and efficiency of conducting trials as well as the will of the judges, the Tribunal is authorized by the Charter to move the whole or part of the trial to any place that it deems appropriate. The Tribunal, however, throughout its existence but for one exception (if it was indeed an exception) conducted all the trials in Tokyo. In the spring of 1947, the Tribunal summoned Lieutenant General Ishiwara Kanji, Chief of Staff of the Kwantung Army, who at that time was bed bound because of illness. The Tribunal sent Harvey Northcroft, the New Zealand judge, and a team of court secretary, reporter, and lawyers to his home at Fukura of Yamagata Prefecture. That was a common practice as the court saw an urgent need by sending a commissioned judge of the tribunal to collect evidence. The place of the trial was not deemed as changed, with the Tribunal applying it only once. The first summer after the Tribunal opened its session in 1946, the weather was very hot in Tokyo yet the judges had to wear the black satin ropes when presenting at the Tribunal which caused them to sweat heavily. Some judges requested that the trial be temporarily moved to Karuizawa, a summer resort. However, after some deliberation, most of judges believed that moving the trial involved too much, and that it was costly and impractical to move the large-scale trial and a large pool of personnel to another location. The proposal was therefore rejected. However, considering the General Headquarters (GHQ) Supreme Commander for the Allied Powers had failed to provide air conditioning and refrigeration appliances, the Tribunal decided to press the GHQ by launching a “strike”. Within one week, the appliances were installed and the trial resumed. Notwithstanding, the Tribunal’s strike was scorned by the public although a more severe ridicule could have been the outcome if the plan of moving the trial had been implemented. Regardless of what the Charter stipulated, the entire trial was only conducted in Tokyo. The Tokyo Tribunal permanently resided within the Imperial Japanese Army Headquarters building in Ichigaya, Tokyo, a location that was purposely selected. Prior to the war, the building was used by the Imperial Japanese Army Academy, cradle of Japanese militarism. During wartime, it was the headquarters of the Ministry of War and the Imperial Japanese Army General Staff Office, acting as the center of issuing orders for its aggressive wars.

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Upon the conclusion of the War, over 75% of the buildings in Tokyo were destroyed from fire and bombs with bricks and tiles scattered everywhere. However, some buildings or structures were still erect, such as an oasis in the desert or an island in the ocean, as was the building where the Tokyo Tribunal resided. The Asahi Shimbun, the most popular daily newspaper in Japan with a circulation of five million readers, poetically described in a news article the exterior environment of the Tribunal (titled “Traces of a Dream”) In red or white, the Azaleas bloom, filling the air with fragrance descending from the grass which scatters among the sides of stairs, along which you can walk to the Tokyo Tribunal. In front of you stands a building in concrete and steel, before its door placed with a wooden plaque that writes “INTERNATIONAL MILITARY TRIBUNAL, FAR EAST”. The pine trees near the plaque still flourished. This building was the locale of the Imperial Japanese Army Academy. After the Pacific War, the Ministry of War and the Imperial Japanese Army General Staff Office moved in, serving as the center of issuing commands and orders (n the service of achieving dreams of the fanatics) for the warlords. The Tribunal’s trials were conducted in the building’s auditorium, the headstream of those Japanese warlords whose acts destroyed human civilizations in the 20th century. At the turning between spring and summer, exactly May 3, 21st year of Showa period, i.e. in 1946, the trial was initiated in Ichigayadai. Alas! The balm of flowers, and the burgeoning spring; all are gone like a dream!4

The building, originally the “War Ministry Building”, was a tall and magnificent structure which had only three stories.5 The Tribunal opened its session on the ground floor (known as the hall of trial), most of which was occupied by the clerical department and the staff under its supervision. The tribunal’s reporters, interpreters, printing staff, guardians, marshals, mail clerks, photographers, recorders, and other servicing staff all took rest and worked on that floor. The lounge rooms for defendants, 4  The Tokyo Trial, Journalist Team of Asahi Shimbun in Tokyo Tribunal, Volume 1, 1946, p. 1. 5  The building that the Tokyo Tribunal used was called the War Ministry Building by the Allied Powers and Japanese people because the Ministry of War had been stationed there after the Imperial Japanese Army Academy moved out before the War. The Ministry of War still stayed there with the Imperial Japanese Army General Staff Office and the allied camp of the Ministry of the Navy. The name of the War Ministry is still appropriate.

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witnesses, counsels, journalists, and other attendees were also arranged on that floor near the hall of trial. The second floor was designated for use by the judges who could work, take rest, and hold meetings there. Each judge was assigned with two adjoining office rooms, one for himself and the other for his secretary and typist. The office of the Tribunal’s President was where Hideki Tō jō worked. The larger room in the middle of the second floor was a meeting room for the judges, where, during wartime, the Japanese warlords instigated plans of aggression. The second floor was also where the office room of the General Secretary and a small canteen offering drinks and lunches for judges, prosecutors, and other senior staff was located. The chefs there were Japanese masters in western cuisines similar to those in the Imperial Hotel, and its waitresses were capable of speaking fluent English. However, the judges seldom went to the canteen, instead, usually choosing to drive to the Imperial Hotel for lunch. The third floor of the War Ministry Building was designated for the staff of the prosecution and their meetings. The General Prosecutors, prosecutors, and assistant prosecutors from the Allied Powers were also allotted with office rooms on that floor. Apart from those, some rooms were used for archiving the documents and books of the Tribunal, and other rooms were used as dormitories for a small number of senior staff (including secretaries, private secretaries, and clerks for printing, typing, and news releases) who might need to live there as required by their duties or for other reasons. At the back of the first floor of the building was the hall of trial, the center for the trials as well as of the center of the world’s attention. The hall was built out from the auditorium of the Imperial Japanese Army Academy, which was square and capable of hosting approximately 2000 people. The GHQ of the Supreme Commander for the Allied Powers began rebuilding as soon as it was decided to establish the Tribunal at that location and took over three months to complete it. It was said that the rebuilding was based on the Nuremberg Tribunal, but its size and sophistication of equipment were superior to those of the Nuremberg Tribunal. The equipment and decorations of the hall were as follows (Fig. 2.1): In the back of the hall stands a long desk with 11 coaches made from Phoebe trees. Beside the coaches lie a large wooden shelf decorated with 11 national flags representing each corresponding judge: the bench. When the Tribunal opened its session, they would walk up and sit on the

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Fig. 2.1  Layout of the Tribunal

bench in order of importance; the President sat in the middle and other judges found their seats to the right and left sides of the President: the United States, China, the United Kingdom, Soviet Union, Canada, France, the Netherlands, New Zealand, India, and the Philippines. The front of the bench was arranged with another long desk and a number of chairs, which were for the registrar, secretaries, and the judges’ private secretaries. In the front of the hall stands a two-tiered table where 28 war criminals sat in two rows. The once pompous warlords were now prisoners, which attracted much public attention. Adjacent to the bench was a declining stand that rose above the ground where the prosecutor or the counsel could speak to the tribunal. Because two people could not speak simultaneously, the stand was very small with room for only one person. The stand was equipped with a loud speaker

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and a red signal light: when the interpreter was interpreting, the light was on; when he finished, the light was off and the speaker could proceed. There was also a set of loud speakers and red signal lights on the bench because the President of the Tribunal often spoke on behalf of the Tribunal. To the left there was a small witness stand above the ground. Two witnesses could not testify at the same time because the stand was very small with room for only one person. When the prosecutor or the counsel spoke, he had to position himself in the stand, while the witness could speak while sitting in the witness stand. The differentiated arrangement was not the Tribunal paying a favor to the witness, but the fact that the witness had to respond to the cumbersome and endless inquiries and examinations proposed by the prosecution and counsel. For example, Puyi, the Emperor of Manchukuo was examined for eight consecutive days; it would be a cruel punishment for him if he had to stand for eight days. In this way, the witnesses could sit on the chairs when examined. A loud speaker and red light were also installed on the witness stand. When the red light was on, the witness’s testimony was being interpreted; the witness could continue when the red light was off. Both sides of the stand were set with two large desks with each seating about 10 people. The prosecution sat at the left desk, while the counsel at the right desk. There were usually a dozen prosecutors (including assistant prosecutors) and nearly a 100 American and Japanese members of counsel. However, only a few of them (those who were on duty) would sit there, and the others would find seats in other places or they were not present in the tribunal. Between the witness stand and the desk for the prosecution there was another square table around which the interpreters would sit. Those interpreters were a group of professionals proficient in both English and Japanese, and they would interpret for whoever spoke in the Tribunal between the two languages. Occasionally, the counsel or witness would speak in Chinese, Russian, or other languages, which they would also interpret into English and Japanese. Around the desk where they sat was a loud speaker and a red light switch button: when they started interpreting, they would switch on the red light; upon finishing, they would switch it off to allow other people to speak. All the desks were equipped with an earphone which could facilitate the listener switching to any language that he could understand and listen to. The earphones could broadcast in English or Japanese, sometimes Russian and Chinese.

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Language and interpretation had become a difficulty for the Tribunal and the parties often raised issues about it. Therefore, the Tribunal established a Language Arbitration Commission which consisted of three members who often sat beside the public gallery of VIP seats. They were ready to resolve any dispute regarding language and interpretation in the Tribunal. Behind the desk for the interpreters was a small desk at which the court reporters sat. They transcribed speech into writing using a shorthand machine rather than by hand. On the right of the hall against the wall, the Tribunal used railing to create a square for journalists. The seats were separated into two parts: one for the journalists from the Allied Powers and the other for Japanese journalists. They often brought cameras, video cameras, typewriters, and transmitters to the Tribunal. Their frequent exit-entry, the chit-chat, and the sound of machines made that square the most bustling and crowded place of the hall. On the left of hall, opposite of the seats for journalists, there was a rectangular stand which was reserved for the guest attendees from the Allied Powers. It had about 100 seats in two rows and was prohibited for anyone who was Japanese from sitting there. Given the significant limitations of qualifications of the guest attendees, the seats were often empty, with that place being the most peaceful in the hall. Under the stand for the guest attendees was a row of seats designated for the prosecutors and counsels, with the members of the Language Arbitration Commission also sitting there. The layout of the first floor in the hall was as described above (Fig. 2.2). There was only one floor area in the hall which was to the right of the judge’s bench. Only one small room was installed for trial recording, and the rest was designated for ordinary seats. Although, with a capacity of 600 or 700 people, that area was usually crowded with an audience, particularly the families of the accused, eager to see their husbands or fathers, as well as the residents and travelers in Tokyo who were curious about the trials of the war criminals.6 6  Among the audience in the second floor were Koki Hirota’s wife and daughter and Shigenori Togo’s wife, a German, who came to all the sessions regardless of what happened. They sat facing their husbands or father, sometimes smiling bitterly. I still recall when Koki Hirota heard that he was sentenced to death by hanging, his face soon paled and he tried to look to his upper right with a desire to find his wife and daughter. However, his wife and daughter were sitting to his left. He had lost his mind and even failed to figure out direction. After hearing his sentence, he was dragged out of the Tribunal by two marshals.

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Fig. 2.2  Map of the seat arrangements for the hall of trial, International Military Tribunal for the Far East. Note: To the left of the judge’s bench there was a floor area above equipped with about 600 or 700 leveled seats for ordinary attendees (Japanese and non-Japanese attendees were separated). (Map of second floor was not available)

In the corner of the seating area was a room for recording which was constructed of glass. It should be noted that apart from a writing record of trial proceedings with over 50,000 pages that covered the two-year Tokyo Trial, there was a wire recording of the entire trial, which showed how expensive the Trial was.

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The marshals of the Tribunal had no permanent seats in the hall. They often went in and out to maintain the tribunal’s order; a marshal would announce with proclamations when the Tribunal opened or closed its session; and when the witness stood for testimony, he would act as a guide and oversee the witness making their oath. The security of the hall and the Tribunal was provided by the military police corps of the GHQ. When the Tribunal opened its session, approximately 20 policemen would stand in their designated positions in the hall, facing the judge’s bench. Only the policemen standing around the stands for the journalists and ordinary attendees stood with their backs toward the judges, which had elicited the animosity of the journalists and attendees. However, to maintain absolute security, their standing positions never changed. The above is a general description of the offices and hall of the War Ministry Building.

2.3   Members of Tribunal: Judges and President 2.3.1   Introduction of 11 Judges As stipulated in the Tokyo Charter issued on January 19, 1946, the members of the Tribunal consisted of over five and less than nine judges. The nominations of judges were selected and appointed by the Supreme Commander for the Allied Powers from the lists proposed by the nine signatories. Within one month of the Charter’s issuance, the list of judges announced by the GHQ had only nine members, respectively from China, the Soviet Union, the United States, the United Kingdom, Australia, Canada, France, the Netherlands, and New Zealand. In the Charter revised on April 26, 1946, two more judges were added to the list (i.e. 11 judges, with two nominations from India and the Philippines), which did not sign in the Instrument of Surrender. They were allowed to join the Trial because they had been permitted to participate in the Far Eastern Commission (FEC), the supreme policy-making body over the control of Japan. To make the membership of both the Tokyo Tribunal and FEC consistent, India and the Philippines were each entitled to appoint a judge. However, Pakistan, Burma, and Ceylon were excluded from that membership because they had no representatives in both organizations. Indonesia and Vietnam were French colonies, and they were

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still struggling for independence and did not achieve the final win; they had no representatives in the organizations either. On the day when the revised Charter was issued, the Supreme Commander for the Allied Powers announced another two nominations from India and the Philippines. On May 3, 1946, the day when the Tribunal officially opened its session, there were 11 judges, whose names were as follows (Fig. 2.3): Sir William Webb, Australian judge and President of the Tokyo Trial John P. Higgins, United States judge (he resigned three months later and was succeeded by Gen. Myron Cramer) Mei Ju-ao, Chinese judge Lord Patrick, British judge Gen. Ivan Michyevich Zaryanov, judge from Soviet Union E. Stuart McDougall, Canadian judge Henri Bernard, French judge B.V.A. Röling, Dutch judge E. Harvey Northcroft, judge from New Zealand R.M. Pal, Indian judge Delfin Jaranilla, Filipino judge All the judges, except for Higgins, served the Tokyo Tribunal at all times. Higgins was the President of the Massachusetts Superior Court, and his work was delegated by a Deputy President after he was requested in Tokyo. However, the Deputy President suddenly passed away, and the other President had been ill. Therefore, he wrote a letter to the US Government and the Supreme Commander for the Allied Powers with a request to resign and returned to the Superior Court. Gen. Myron Cramer, former Judge Advocate General replaced Higgins. It was rumored that the judge from the Soviet Union was a military man, the United States therefore sent a corresponding one to take that position. The replacement of the US judge took place in mid-July, 1946, less than three months after Higgins took the position. On the first day when General Cramer presented at the Tribunal, the defense counsel took advantage, proposing an aggressive motion to the Tribunal that Cramer should be barred from the Tribunal for the following reasons: (1) the maximum number of the Tribunal’s judges was 11, but the appointment was the 12th which went against the Charter; (2) the midway replacement could not guarantee justice of the Trial; (3) as a general of the victory state and former Judge Advocate General, he could not be impartial in the Tribunal.

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Fig. 2.3  Judges of International Military Tribunal for the Far East

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The Tribunal resolutely rejected that motion after the judges’ meeting. Before the Tokyo Trial started, the defense counsel also proposed that the President of the Tribunal and the Filipino judge leave the trial and threatened to make such a proposal against any other judges. Before Webb was appointed as President, he was the former chairman for the Investigation Committee of Japanese Military Atrocities appointed by the Australian Government, and may hold prejudice against the Japanese troops and chair the trial without impartiality. For the reason against Delfin Jaranilla, the defense counsel found he had been captured by the Japanese troops and was forced to join the Bataan Death March.7 As a survivor of the march, he was presumed to bear a hatred of the Japanese army and might not deliver an impartial judgment. After the two frivolous motions were proposed, the Tribunal rejected them determinedly, and no further challenges were mounted by the defense counsels. Within less than three months, they took advantage of the substitution of the US judge by making another challenge against such a replacement, a mere act of implementing their strategy of finding issues with the trial to delay it. Such an incident could have been avoided for the Tokyo Trial had the Tokyo Charter provided a stipulation to forbid any challenge against the judge, as the Nuremberg Charter did.8 However, the Tokyo Charter failed to foresee such a dispute and unavoidably exposed the Charter’s loophole to the defense counsels. The 11 judges, nominally appointed by the Supreme Commander for the Allied Powers according to the list proposed by the Allied Powers, were in reality selected by the governments of all Allied Powers. Furthermore, those governments only provided one name for the judge rather than a list of judges, and the Supreme Commander for the Allied 7  Bataan Death March, one of the most atrocious acts of Japanese troops during World War II, much like the Nanjing Massacre. In the spring of 1942, when the Japanese troops took over the Bataan peninsula in the Philippines, the prisoners and non-military Filipinos were forced to march under the scorching sun to San Fernando regardless of their age or physical conditions. The march lasted for nine days with a total distance of 120  km. During the march, the Japanese troops not only refused to provide food and water for the prisoners and Filipinos, but also brutally beat them at their own will and shot anyone who secretly obtained water from the ditches. Over 8000 prisoners and Filipinos died in the march; their bodies were scattered along the road. This event was therefore called the “Bataan Death March”. 8  Cf. Article 3 of the Charter of the International Military Tribunal, Nuremberg. It stipulates no challenge shall be proposed against the judge.

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Powers had no choice. Theoretically, those judges were international, but they represented their home country, as recognized by the national flags displayed behind the bench and displayed on the cars they drove. Of the 11 judges, the US judge and the Soviet Union judge were military men, while the other judges were civil servants who had either served the judicial department of their own country or engaged in legal education, practices, or public activities. Sir William Webb (59 years old), at that time the Chief Justice of the Supreme Court of Queensland, had been committed to legal practices since 1913. The UK judge (57 years old) was the Chief Justice of the Court of Session; the New Zealand judge (62 years old) was a judge of the Supreme Court of New Zealand at Christchurch; the Filipino judge (63 years old) was the Deputy President of the Supreme Court and even served as the Attorney General and Minister of Justice of the Philippines; the Canadian judge (58 years old) was a judge of the Quebec Court of Appeal. All of the judges were not only old in age, but also masterful in experience. The Indian judge (58 years old) was a ­professor of mathematics but later changed to law; he also had approximately 30 years of experience in legal practices and participated in many international activities. The Chinese judge (42 years old) and the Dutch judge (40 years old) were much younger than other judges. Apart from their experience in legislation and legal practices, they also served as university professors and conducted research in legal theories. Henri Bernard (47 years old) had been acting as a colonial magistrate since he graduated and was a passionate advocate of De Gaulle’s Free France. The two judges affiliated with the military did not wear robes, but rather their conspicuous military uniforms. Although serving in the military, they were both law graduates and had many years of experience in judicial service and prosecution. The Soviet Union judge (62 years old), the chief justice of the Wartime Military Collegium and the President of the Law School of the Red Army, was then the judge of the Military Collegium of the Supreme Court of the USSR who had joined the trial of Leon Trotsky and Nikolai Bukharin and their followers. General Zaryanov received the Order of Lenin, Order of the Red Banner Order of the Red Star, Medal of Twenty Years’ Service in the Red Army, Medal for the Defense of Moscow, and the Medal for the Victory Over Germany. The US judge (65 years old) was the eldest of all the Tribunal members. He was a law school graduate from Harvard University who had been engaged in legal practices. During World War I, he served the US

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Army and fought in France. After the war, he had spent over 20 years as a judge advocate and teacher of military law. In the years between the breakout and end of World War II, he had served the Judge Advocate General’s Corps of US Army, the principal judicial officer in the US Army, and conducted effective and fruitful reforms on US military legal systems. He retired in November 1945, but was recalled to active duty to act as the judge representing the United States in the Tokyo Tribunal. He received the Labor Glory Cross, Distinguished Service Cross, and the Honorary Doctor Degree of Law. The above generally depict the members of the Tokyo Tribunal. On October 23, 1946, the Civil Intelligence Bureau of the Supreme Commander for the Allied Powers had posted a detailed news article about the resumes of the justices. That news article was reprinted in the Japan Times and other Japanese newspapers.9 2.3.2   Working Relationship and “Judge Meetings” During the existence of the Tribunal, the 11 judges were diligent and cooperated in harmony. The Indian judge would express peculiar views on every major legal issue and often picked a quarrel with other judges in the judge meetings, but they did not discriminate against him after the meeting. The Soviet judge, the only representative from a socialist country, always expressed ideas that were totally different from those of other judges, whose acts and words often invited their loathing, ridicule, and even censure. They would, nonetheless, be completely at ease and showed no contempt. In a group of judges that were highly educated and over 50 years old, that relationship should be deemed as normal. The official language for the judge meeting was English. According to the Tokyo Charter, all the proceedings in the Tribunal would be conducted in English and Japanese, the latter of which could be understood by the accused. To ensure a fair trial and the right to be defended, the accused should be made aware of what was going on in the Tribunal, which necessitated the use of Japanese. Yet, the judge meeting was often secretly held without the presence of the accused, and the Japanese translation was not required. During the judge meeting, they spoke in English and any judge who did not speak English would bring a translator with him. 9  For the Tribunal members’ lives in Tokyo, Xie Shuangqiu, a special reporter of Shanghai Xinwenbao (《新闻报》), wrote a lengthy article, published in series from March 23–25, 1948.

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Language was not an issue among the Tribunal’s judges. The majority of them were educated or trained in Anglo-American legal systems, even India and the Philippines, which had long been colonized by the United Kingdom and the United States, implemented their higher education in the English language. Not only could the Indian and Filipino judges speak English, but they had received an Anglo-American law education. As to the judges from China, France, and the Netherlands, neither English-­ speaking states nor Anglo-American law system, they could speak English and were well-equipped to grasp the procedures of Anglo-American law although they were educated in the civil law system, the opposing legal traditions. The selection of a group of judges with a similar educational background and language capability was made before the establishment of the Tribunal when the US Government, which occupied and controlled Japan, had informed the Allied Powers. On October 18, 1945, the US Department of State clandestinely sent department notes to the embassies of the Allied Powers. The notes explained in detail the policies and measures of the US government dealing with Japanese war criminals. As was written, the Supreme Commander for the Allied Powers would try the Class-A war criminals and requested those governments to prepare nominations for judges that the Supreme Commander would appoint. The note specified that the Allied Powers were advised to recommend a legal expert that could speak English. The request in the note certainly affected the recommending of the non-­ English speaking powers. The People’s Republic of China sent a man who had studied in the United States for years and earned his Ph.D. degree in law there and then taught Anglo-American law in China. For all the reasons mentioned above, most of the judges in the Tokyo Tribunal could speak English except for the Russian judge who, not intimidated by the difficulty in language, was usually supported by an interpreter with fluent English and some highly efficient translators. He eloquently debated with other judges and sometimes sent memorandums to them, but his ideas or proposals were seldom supported or valued. The judges who were not presented with great opportunity to speak, or were unsatisfied with the majority opinion, would write memorandums in their offices after the judge meeting finished and send them to other judges. Those memorandums sometimes focused on fully expounding their ideas or attacking other judges’ ideas or proposals made during the meeting. The issuance of memorandums between judges was very frequent, every time a major issue was discussed or decided. This is what

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outsiders jokingly called the “Battle of Memorandum”, another task undertaken by the judges in addition to attending court sessions and the judge meeting. However, that task was voluntary; some judges who insisted on their own ideas or favored phrase-mongering would relish it with unfailing joy, and the others were often indifferent. It was the President’s responsibility to handle the memorandums. If the memorandums gave specific suggestions or asked for reconsideration of the resolution or decision agreed in the judge meeting, the President was obliged to discuss it by convening a judge meeting. If the memorandums made only academic proposals, defended the proposals that had been rejected, or expressed animosity, then the President could ignore them without calling a meeting or taking any other action. The organization of members of the Tokyo Tribunal was very different from that of the Nuremberg Tribunal. In the Nuremberg Tribunal, every main judge had an alternate, who could act at his sole discretion, to perform duties when the judge was absent from a court session or meeting. Therefore, in the Nuremberg trials, four judges representing four countries were all present every day. The Nuremberg Charter also stipulated that any major resolutions could only be made by affirmative votes of at least three members of the Tribunal.10 The Tokyo Trial had no such rule as to establishing an alternate judge. The Tokyo Charter stipulated that the presence of over half of the Tribunal members would be necessary to constitute a quorum, and any decision would be made by a majority vote of the Tribunal members present.11 On that account, the presence of 6 of the 11 judges would be necessary to open the session or convene a meeting, and the affirmative votes of 4 of the 6 judges present would make any decision. In addition, the Tokyo Charter clearly stated that in the event that the votes were evenly divided, the vote of the President would be decisive.12 With that connection, it was possible that four judges or the President plus two judges could manipulate the Tribunal, which constituted great peril.13  Cf. Items 1 and 3 of Article 4, Charter of the International Military Tribunal, Nuremberg.  Cf. Items 1 and 2 of Article 4, Charter of International Military Tribunal for the Far East. 12  Cf. Item 2 of Article 4, Charter of International Military Tribunal for the Far East. 13  М.Ю.Рагинский and С.Я.Розенблит ever had this idea. Cf. М.Ю.Рагинский and С.Я.Розенблит, International Trial of the Japanese Major War Criminals, World Affairs Press, 1954 (Chinese Translation), p. 55. 10 11

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Notwithstanding, such a peril was theoretically existent, although it was never in fact realized. During all the proceedings of the Tokyo Trial, the absence of a judge was rare, except for the President and Indian judge leaving for their respective countries due to business (a dozen days), other judges were present almost all of the time. The bench was typically full, and having two empty seats was rare. For example, the Chinese judge was only absent several times out of his 818 supposed presences. Some judges never asked for a leave and nearly all the judges were present on time, queuing in and out as pupils queued in and out of class. During all those proceedings, they were hardworking with a strong sense of responsibility and the case of votes being evenly divided never occurred. In the President’s absence from the Trial, the US judge acted on his behalf because he sat to the right of the President, which, according to the order of importance, meant he ranked No. 1, while the Chinese judge ranked No. 2 seeing that he sat to the left of the President. 2.3.3   Order of the Bench The Tokyo Charter did not stipulate the rules regarding the order of the bench, which caused a heated debate; therefore, it will be mentioned here. Debates over seniority of seats are bound to occur on any international occasion including an international court, because it is not only personal, but also connected with status and honor of country. The discussion regarding the bench order of seniority had been ongoing for several days prior to the Tribunal opening its session. Supposedly, the order of the bench should be prioritized according to signatories in view of the fact that the judges were sent by the signatories (i.e. the United States, China, the United Kingdom, the Soviet Union, Canada, France, and the Netherlands). That was the most reasonable arrangement and was agreed upon by the judges from China, the United States, and Canada. Another offered a suggestion that the bench order should not follow the order of the judge’s country but the “years” of judges because the Tribunal was an international organization. However, someone questioned what were the “years”, the age of the judge, or the time he spent in his country’s court? There was also a difference between a judge at a local court and at the Supreme Court, was one year serving a local court equal with one year serving in the Supreme Court? If not, how to calculate the “years”? Were the years he spent in a law firm or a college the same as the time he spent in a court? It was suggested that to address all those issues,

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a special committee should be established to investigate the legal and political systems of the judge’s country. The debate stirred up a variety of proposals, but no one unanimously agreed. Finally, the Chinese judge said, “I think it is the most reasonable solution if we arrange the seats according to the sequence of signatories. If the President and others do not agree, we might find a weighing scale to weigh us and arrange seats according to our weight; for the heavier, they will take the central seats, while for the lighter, they take the side seats. This is the fairest and most objective standard.” However, the President of the Tribunal did not like it. He wanted to have the US and the UK judges, particularly Lord Patrick, sit by his sides. With that in mind, he had made great efforts to change the original arrangement by proposing various substitutions. He first recommended that the bench sequence follow the order of the Five Powers of the UN Security Council (i.e. the United States, the United Kingdom, the Soviet Union, China, and France). However, it was then pointed out that the five permanent members of the UN Security Council were followed by an alphabetical order of country names (i.e. the Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States). Therefore, according to the President’s theory, the judges from China and France would sit by his sides rather than the US and the UK judges he had favored. Then the President proposed his second plan that the Tribunal was not a UN-affiliated agency, dissuading the need to follow the UN’s alphabetical order of the Five Powers. Instead, a general alphabetical order should apply. As a result, the central seats would be taken by the judges of China, Canada, France, India, the Netherlands, and New Zealand, distancing his favored judges even further. The Tribunal burst into laughter. The President laughed and said, “Your solution is good, but it only applies to boxing games. We are here at an international tribunal not a boxing stadium”. He then replied, “if the order of signatories is not followed, then this solution, in my opinion, is the only applicable standard. Even if I will be placed at the edge of the Bench due to it, I can sit there at ease. Meanwhile, I can explain to my government and absolutely, they will not be dissatisfied with me. If China wants to have a central seat, it has to send a fatter man to substitute me.” Obviously, the Chinese judge had realized that the President was marginalizing him, preventing him from taking the central second seat. The issue of the bench order was repeatedly discussed in several judge meetings in a half-serious and half-joking tone. The President neither

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made a decision nor made them cast a vote, leaving it in disputatious chaos. Before the day when the Tribunal opened its session, his intention was finally revealed. The second day of May, 1946 marked a decisive day when the debate over the order culminated. In the morning, the General Secretary sent an emergent notice to the judges that the rehearsal of the Tribunal’s opening ceremony would be held at 4 o’clock and photos would be taken then. All the judges should wear robes and be prepared. It was noticed that all the judges gathered at the lounge on time. The President then announced the order of approaching the bench and the seats were the United States, the United Kingdom, China, the Soviet Union, France, Canada, the Netherlands, New Zealand, India, and the Philippines, saying the arrangement was made according to the consent of the Supreme Commander for the Allied Powers. According to this arrangement, the judges of the United States, China, France, the Netherlands, and India would sit on the President’s right hand, while the judges of the United Kingdom, the Soviet Union, Canada, New Zealand, and the Philippines on his left hand. On its surface, this arrangement was accorded with the principle that the Five Powers should take the central seats. However, China was actually marginalized by being ranked on the third, and Canada, which should be ranked before France for it signed the Instrument before France, was just a companion to the central. His announcement surprised the members, of which the Chinese and Canadian judges were the most irritated. The Chinese judge said, “this arrangement is absurd, for it was made neither according to the order of signing the Instrument of Surrender, nor to the order of Five Powers as UN Security Council did, even not to an alphabetical order generally adopted by an international conference. It is very unintelligible. I refuse to comply and am not suitable to join the rehearsal.” He then went back to his office and took off his robes to show that he was determined to reject it. The Canadian judge also followed. Seeing it had gone out of his control, particularly the Chinese judge’s reaction, he went to his office and said with glib phrases to him, “The Supreme Commander’s intention of putting the US and UK judges in center was made based on their familiarity with the Common Law procedures. It is only for the purpose of facilitating our work, not for discriminating against China. China’s seat in the Bench is still high above the Soviet Union and France, acting as a central power.” The Chinese judge replied, “it is an international tribunal, not a US or UK one. I see no need to put them in the center. If there is indeed

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a need to do so, why the judges of Canada and New Zealand are placed in the corner of the Bench?” The President then explained that “to the current arrangement, your neighboring seats are taken by the US and French judges, not the Soviet general, and it will be very pleasant for you”. He then replied, “I came to Tokyo not for personal pleasure. China has suffered from over fifty years’ of Japanese aggressive invasion conducted by these war criminals. For Chinese, it will be a very serious, not a pleasant, task of trying these people. As to Soviet, we are not as scared or afraid of his as you westerners are. Personally, I feel he is an amicable person since he can talk and joke with us at ease.” Seeing he was being rebuffed, he then threatened, “This is the Supreme Commander’s order. It would be a pity if your refusal entails any unpleasant situation for Sino-US relations. Your government may not agree with your decision.” Emotionally, the Chinese judge replied, it is a different matter whether the government agrees or not. I, personally, cannot accept such an arrangement without proper grounds, in law or in facts. A soldier is only obliged to comply with a legitimate order, not to mention a judge. In addition, China has been inflicted with the most disastrous and long-­ lasting Japanese aggressive invasion, suffering from the greatest losses. It is beyond my belief that China’s seat in a tribunal, dedicated to trying the Japanese war criminals, will be debased to a seat equal to Britain who did nothing but to surrender during the wars. I don’t believe that China will agree with your arrangement. Meanwhile, I suspect it was in effect made by the Supreme Commander’s hands.

His suspicion concerned the President’s morality and integrity. Being annoyed, he saw the Chinese judge was determined to insist and the persuasion failed, he rose from his chair saying, “Please allow me to discuss with other brothers and see if they have other ideas. Please stay here, I will come back within ten minutes.” His offer to make him stay was made when he saw the Chinese judge was prepared to leave for his hotel by wearing his robes and hat. In less than ten minutes, the President returned. Smiling, he said, “I have discussed with other brothers, and they all agreed today’s rehearsal was a temporary and unofficial one. We can proceed with the original arrangement without change. As to the arrangement of tomorrow’s session, we can discuss in a meeting.” The Chinese judge felt it was a trick—to make the arrangement factual, then find an excuse to cancel that night’s meeting, or declare that the Supreme Commander refuses to change the arrangement the next day and the original and “practical” one will be

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implemented. He was therefore resolved to argue for change. He then turned to the President, saying, even if the rehearsal is temporary and unofficial, many photographers and journalists who are waiting at the hall will take a lot of photos and post them in newspapers. These photos will inevitably be seen by Chinese people, who will be surprised to see such a unfounded arrangement that does not match China’s honor and status and then scorn me for my ineptitude. Though the Tokyo Charter does not stipulate the Bench order, its establishment and its power to try the major Japanese war criminals are founded on Japan’s Instrument of Surrender. To arrange the Bench seats based on the sequence of signature is the single legitimate and reasonable solution. I have discussed it several times in the meeting, and most colleagues express no objection, even offer a better approach. However, you have been disinclined to deliver it for voting. I see no need to hold another judge meeting. The only solution is to maintain the approach of the sequence of signature during the rehearsal. If the Supreme Commander does not agree, we will convene a meeting to discuss it tomorrow. If not, I refuse to join. Meanwhile, I have to consider with caution what I am going to do in the future, either sending a plea to my government to see if it supports me or send a resignation and asks for another man to replace me. However, it is my personal business.

Upon finishing, he gestured to leave. Seeing his hope dashed again, the President was anxious and said to him, “Please stay for another few minutes, I will come back after discussing with other brothers.” The rehearsal had been delayed for about 20 minutes, and the participants were impatient. The Chinese judge knew that if he was absent, the rehearsal would not be held. Even if the rehearsal was held today, the official opening of the Tribunal session would be postponed. Given that the date of session opening had been announced to the world, and all the preparations were ready, the delay would spark worldwide debate. Additionally, the Tribunal did not settle the date of court session opening until the Soviet judge came to Tokyo, and the GHQ and the President of the Tribunal had reaffirmed that the Trial would start when all the judges were present. Even if the Soviet judge arrived, the refusal of the Chinese judge to participate would also make it impossible to start the Trial. Failing to comply with the announced date would lead to suspicion, surprise, and scolding not only among the Japanese people but the whole world. The Supreme Commander or the President of the Tribunal could not afford to bear its consequences. According to such a

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calculation, he thought it was proper in time and occasion to cast his doubts with determination.14 In less than 10 minutes, the President came to his office for the third time. He said, “we agreed with you; the rehearsal will be conducted in the sequence of signature. I will report it to the Supreme Commander tonight to see whether he agrees.” He left immediately, exasperated. The Chinese judge put on his robes and went to the meeting room. The rehearsal started, although 30 minutes later than expected and a lot of photos were taken after. At 9:30 of the following day, May 3, the Tribunal officially opened its session. This was a major event in Tokyo, and the hall was crowded with journalists, photographers, guests from Allied Powers, and Japanese attendees. The judges had already gathered at the meeting room. The President then came and announced, “The Supreme Commander has agreed; the sequence of approaching the Bench and the seats order shall be followed as in yesterday’s rehearsal.” The judges felt relieved at hearing that, for the debate over it, which had been in stalemate for several days, was finally resolved. The Canadian judge was especially excited and whispered to the Chinese judge, “I should thank you. Without your insistence, I would sit behind the French judge, a disgrace for me indeed. I think that ridiculous arrangement was Webb’s intention, and his mentioning of Mike (MacArthur) was merely intended to intimidate us.” Whether the original arrangement was the idea of the President or MacArthur and himself remained a mystery, and could not be revealed to outsiders. Second, we should be aware that China was still faced with prevalent oppression and discrimination although it now ranked as one of the Five Powers. As a great country, its rights and interests are often deprived and invaded. In a corrupt and impotent government under Chiang Kai-shek’s administration, China had been suppressed in that situation. To safeguard China’s rights and interests required more arduous determination to fight. The battle over the Bench order was narrated not to exaggerate the significance of winning it, but to take a lesson from it. We should first realize that the struggles, open or secret, over order of seats and grandeur in any international occasion are often bound to occur. They pertain to a country’s status in the international community, and its dignity and honor; 14  The dispute over the bench’s order, and the Chinese judge winning the battle against the President and the US and UK judges, see LIU Pusheng, a special reported in Tokyo sent by Yishibao (《益世报》) in Tianjin in his, article titled “Introduction to Judges in the Tokyo Tribunal” (August 3, 1947).

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hence we shall not treat them in an indifferent manner, regarding it as a minutia. Finally, we should also recognize that the grounds of fighting for national rights and interests should be legitimate and reasonable. We should then show our determination and courage of unyielding to the powered. Naturally, we should also be aware of the situation and possible consequences and be prepared for changes. Only with courage, not with both courage and strategy, will we accomplish nothing and may hinder our efforts. The above section is about the arrangement of the judge’s seats, which was finally settled after several fiery debates. The following section will be about appointment, powers, and role of the President of the Tribunal. 2.3.4   Appointment, Powers, and Role of the Tribunal’s President As stipulated in Item 1 of Article 3 in the Tokyo Charter, the President of the Tribunal is selected from the 11 members of the Tribunal and appointed by the Supreme Commander. The Nuremberg Tribunal was different: the President was elected by the judges.15 Elected or appointed, the President was a member of the Tribunal and responsible for the trial. He was on the same level with other judges in respect to rights, such as delivering a decision or judgment; however, he was different in respect to being granted certain functions, such as procedures and administration, in which he played a role. The Tribunal’s President was William Webb, an Australian judge. There was much speculation for the reasons for his appointment. First, the general prosecutor responsible for crime investigation and prosecution was an American, the President shall be a non-American, otherwise the United States would be deemed as dictatorial in the trial, and would be seen as being overly ambitious. However, the President should be a non-­American who must follow the Anglo-American legal traditions. As was pointed out, the Anglo-American traditions took absolute advantage in the procedures, working language and number of Tribunal members, although the Tribunal was itself an international one and the Tokyo Charter stipulated that no legal rules shall impose restrictions on the trial. Among the judges that were educated under Anglo-American law, Sir William Webb was a perfect candidate in the eyes of MacArthur. Lord Patrick was rich in  Items 2 of Article 4, Charter of the International Military Tribunal, Nuremberg.

15

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knowledge and high in prestige, but he was a Scott who was educated by the Scottish law traditions, not a typical common law judge. Other judges, such as Northcroft from the New Zealand and McDougall from Canada, although were experienced judges, lacked the prestige and capabilities compared with Sir William. India and the Philippines, although a part of common law traditions, were former British and US colonies, low in international status and small in contributions to the war against Japan, their judges were naturally out of MacArthur’s consideration. Though small in population, Australia had a vast land, abundant resources and geographical advantages, part of the British Empire as well as a major base for the Allied Powers’ war against Japan. During the ­difficult years of the Pacific War, MacArthur’s general headquarters were stationed in Australia, and he had special feelings about Australia and closer relations with Australians. It was said that Sir William knew MacArthur during the Pacific War and they maintained a good relationship. That was perhaps a reason why he was appointed, but not a primary one, as it pertained to the international status and Webb’s experience and expertise. Webb was not only a standard professional judge, but also wellbehaved, energetic, and dedicated with high capabilities. Although a typical British gentleman, he was yet a rough Australian. His attitude and words were explicit, sometimes rash and impatient, which often elicited resistance and conflicts within the Tribunal. For example, on the second day of trial, when Mr. Keenan, Chief of Counsel, read his lengthy opening statement with certain delight, Sir William barged in, “Your provocative words are of no benefit to our trial.” Annoyed, Mr. Keenan rebuked with evil words and threatened to resign. When the Tribunal asked some defendants to plead guilty or not, Araki Sadao replied, “in my life of over sixty years, I have never committed any crime against peace, or conventional crime or crime against humanity”. The President rebuked, “We only want you to plead guilty or not, rather than to give a speech.” Kijurō Shidehara, a former Prime Minister of Japan, was once called to testify before the Tribunal. He was one of the Japanese politicians who could speak fluent English and thus was allowed to speak in English. However, upon finishing a few words, the President stopped him, saying, “Witness, your English was completely not understandable! You might as well speak in Japanese.” Sir William Webb was not only rash with prosecutors, witnesses, and defendants, but also sometimes rude to the defense counsels. For example, Takayanagi Kenzo, defense counsel for Suzuki Teiichi and a well-known legal scholar, was permitted to read his lengthy and bombastic plea before

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the Tribunal regarding the Tribunal’s jurisdiction. When he started in a solemn tone, the President reprimanded, “You don’t have to assume airs as it has some significance. We have already known every word you will say. So read it faster and do not waste our precious time.”16 During Tribunal interrogation, David F.  Smith and Owen Cunningham, two American counsels, were forced to resign due to instigating verbal conflicts with the President. Smith’s counsel was suspended by the judge meeting because of his arrogance and disrespect before the Tribunal and defiance after being reprimanded by the President; Cunningham was dismissed as a “fool” by Webb when they had a verbal conflict, and he was irritated and asked the President to apologize, which caused an uproar among the participants in the Tribunal. The President declared the court was adjourned and said, “this matter will be discussed and decided by the judge meeting, of which I shall be left outside”. In the absence of the President, the judges decided to support him and agreed that the President was not necessarily bound to apologize because his words were not indiscreet. The Tribunal then opened and announced their decision. Cunningham was annoyed and asked to resign before the Tribunal, with the Tribunal accepting the resignation. The above are mere examples that can demonstrate Sir William Webb’s character and his usual harsh attitude toward the defendants, counsels, and witnesses. That attitude was often supported by other judges because it was effectual in countering the counsel’s intention of delaying the trial endlessly. That the Tokyo Trial could proceed smoothly in a complex situation can be attributed, more or less, to Webb’s character and attitude. As a member of the Tribunal, the President was assigned to try the war criminals; therefore, he had the same rights and obligations as the other judges in respect to making a decision. However, as a President, he had some special functions in trial procedures and administration: The President presided over the opening and spoke on behalf of the judges. Every time the Tribunal opened its session and the judges walked to the bench one by one, the President would take the lead and sit in the middle. He also led the bench to recess. During the court session, he would speak on behalf of the Tribunal, directly questioned the prosecutor, the counsel, and the witness and announced the Tribunal’s motion or 16  Takayanagi Kenzo’s defense was already published by Yuhikaku in the name of The Tokyo Trials and International Law. As a senior renowned professor with the Tokyo Imperial University, his defense fully represented the defendants’ stance, opinion, and claims.

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decision regarding them. It was rare for the Tribunal to directly examine anyone who spoke before it, whether the prosecutor, counsel, or witness. In the common law system, all the questions brought by the Tribunal would be raised by one party. For example, the defense may ask any questions regarding the prosecution’s statement or claim, which constituted a thorough verbal debate. The defense could also, in an exhaustive manner, question the witness called by the prosecution and their testimonies to belittle the value of the testimony. The prosecution also did this to the defense. After repeated cross-examinations, the truth and the problem were easy to find. The judges did nothing but to listen, like the judge in the debate. This is different from the civil law system in which the judge could directly examine the party. After both parties’ examinations were completed, the judge could propose his question if he had doubt over a certain fact or problem. His question was sent in a note and announced by the President, asking that the party answer it immediately. However, such a case was rare. Although direct examination was rare, the Tribunal had to address the numerous motions or claims brought by the prosecution and the defense. Such motion or claim could be frequently made particularly when an important witness was examined by both parties. For example, as to the witness called by the prosecution, the prosecutor (often called “prosecution counsel”) would examine him/her first. If the defense counsel believed that the witness’s response would be unfavorable to the defendant, he could immediately stand up and make a motion before the witness answered the question, saying, “I object to the issue proposed by the prosecution because the question is irrelevant or immaterial with this case. The Tribunal shall inhibit it.” After direct examination, any defense counsel could counter-examine to search for testimonies that might benefit the defendants or reveal the contradictions in his testimonies that he has made to debase them. The prosecutor can launch a motion against any question that the defense counsel raised and he/she considered unfavorable, declaring that “I object to the question brought to the witness because it is irrelevant or immaterial with this case. The Tribunal shall inhibit it.” This also applies to any witness called by the defense counsel. Whether the defense counsel directly examined him/her or the prosecutor counter-­ examined him/her, the other party may ask the Tribunal to inhibit the raising of such a question by claiming that “it is irrelevant or immaterial with this case”.

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Not only the witnesses, but also the documents presented before the Tribunal, were often objected to by either party. Every time a party presented a document for evidence, the other party could make a motion to ask the Tribunal to reject it, stating “it is irrelevant or immaterial with the case, and therefore it has no value for evidence”. Additionally, a suspicion about the validity of a document could serve as an excuse to request that the Tribunal rule it out of evidence. Considering that the Tribunal had received hundreds of witness and thousands of documents during the Trial, the motions, endlessly announced by them, were numerous, which served as an effective means by the defense to delay the trial. Although aware that each motion such as that was deliberately made, the Tribunal had to make a decision regarding it in the court, otherwise the trial would be interrupted. The decision that had been agreed upon by the majority of the Tribunal members was often announced by the President. During the preliminary stage of Trial, the Tribunal was often adjourned, and delivered the motion to the judge meeting for discussion and voting. Each decision would take an extra 20 minutes no matter how trivial it was. Meanwhile, the frequent recesses of the Tribunal caused inconvenience. Soon after, the judges realized that to resolve a motion by court recess was not a good idea and decided that an ordinary motion shall be decided in the court except for some significant issues that require a judge meeting. To address it in the court, the judges needed to vote. Each judge wrote his opinion, sent it to the President, and the President would make a ruling based on the majority opinion and immediately announced it. It then took only two to three minutes to resolve a simple motion. The judges who should vote to decide the motion originally wrote many words in a literary and polite style like writing a letter: it often began with “dear President”, followed by “I agree to accept…” or “I object to this motion”, ended by “on the grounds that…” or “because…”, and finally closed with their signatures or name abbreviations. Later, they felt the literary words in the beginning and end were unnecessary and the grounds were also redundant, so they only wrote “agree” or “disagree” instead. Eventually, they thought the two words were bothering, and simply replaced them with “+” (agree) and “-” (disagree) markings. Once a motion was launched, the judges could mark on their note and send it to the President; the President then collected their notes and calculated the

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numbers of “+” and “-”, and announced their decision immediately. The motion could be resolved within one minute. Although the decision by the Tribunal was simplified to a point where it could not be simplified, it was still the most time-consuming and troublesome issue for the judges considering the motions were usually launched very frequently. This was especially true for the President who was often busy with collecting and calculating votes and would announce the decision on behalf of the Tribunal. All the general rulings (90% of all rulings) were made by on-court voting. The judge meeting was only convened when a significant issue arose. Any judge who considered it necessary to convene the meeting could send a note to the President who would adjourn the Tribunal immediately. Additionally, any judge who had questions about a witness’s statements could also send a note to the President, and the President would announce the question on his behalf. The President was not only the man who presided over the Tribunal, but also the sole speaker on behalf of all judges. Some motions or requests that were trivialities unrelated with the Trial could be resolved by the President himself. For example, a witness asked the Tribunal to forbid the use of flashlights for it was too bright which stimulated his eyes and distracted him from thinking. The President therefore supported and ordered stopping the use of flashlights. When a defense counsel boasted about his statement before the Tribunal, he suddenly felt an urgent need to use the toilet and asked to allow him to leave for two minutes, saying “this request is out of the urgent physical need”. The President laughed and said, “This is a strange request this Tribunal has never had before. But, in any case, I will approve your request.” Such trivial matters were decided by the President; there was no need for a judge meeting nor did any other judge object to the President’s handling, blaming him for “going beyond his authority,” or being “undemocratic”. Apart from speaking on behalf of the Tribunal and judges, the President was also responsible for chairing the judge meeting: calling for a meeting and serving as the President of the meeting. That responsibility was less heavy than the previous one, because a judge meeting was not usually convened, unlike the trial that took five hours a day (the Tribunal opened its session from 9:30 to 12:00 in the morning and 13:30 to 16:00 in the afternoon, with two 20-minute intervals for rest). Because the judges could meet in the lounge rooms and the President could resolve some trivial issues by consulting them during their rest, no official judge meeting needed to be held.

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The President could only convene the judge meeting under the following circumstances: (1) The prosecution section, the defense (any defense counsel), or the General Secretary made requests or asked for advice in writing regarding some important matters, such as requesting the Tribunal to recess for several days to prepare proceeding materials, to cease the application of some part of the procedures over a certain matter, or to summon someone to testify before the court. The prosecution and the defense made long lists of witnesses summoned for the judge meeting’s simultaneous review and approval. Individual temporary requests were also allowed. (2) The motion that the party made during the proceedings could not be resolved through in-court voting, the judge meeting would apply. However, the judge meeting should be held under the following scenarios: on one hand, after hearing the motion, the President felt it of great importance and insufficient to resolve it by merely sending notes for voting, he could adjourn the Tribunal and convene a judge meeting, and then announce the decision when the Tribunal was in session again; on the other hand, if one or several judges were displeased with the voting result of a motion and sent notes to the President asking for discussion in a judge meeting, then the President should adjourn the Tribunal immediately, declare that the voting result was invalid and decide that the Tribunal’s ruling should be announced once the Tribunal opened its session again. Any judge could request the President to hold a judge meeting from time to time, in writing or orally, and the President should do as requested and not object or delay for any reason. (3) In the “Battle of Memorandums”, the President may convene the judge meeting to discuss or debate if a memorandum deemed it necessary to reconsider a certain Tribunal ruling or finding or he considered the memorandum was worthy of study. The discussion and debate were mostly academic and theoretical, serving as guidance or reference for the Tribunal’s future work, although they had never led the Tribunal to overthrow or change its rulings. The judge meeting only applied to the above three scenarios and was not often held. For the President and other judges, the meeting itself was not a heavy burden, unlike the court session in which they had to wear

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robes and attentively sit up to five hours. Over the course of over a two-­ year trial, the judge meeting was convened for less than 100 times with 30 minutes to one hour or 10 to 20 minutes each (except for the one-day meeting of discussing the Tribunal’s judgment and the punishments imposed on the war criminals). The judge meeting was often held in secret, and all the procedures were conducted in oral form; the judges could only attend by themselves except for Zaryanov, who had no knowledge of English and was therefore permitted to attend with his interpreter, Mrs. Bernstein, who was over 60 years old and was fluent in English, French, and German. She interpreted like an automatic translator without any interval that would delay the meeting. Mrs. Bernstein was authorized to attend by swearing an oath and was endorsed by the Soviet judge. Due to the secrecy of the meeting, the Japanese often called it a “secret tribunal”, which was distinguished from the “public tribunal”, which was incorrect. How could a meeting be referred to as a “tribunal” if it was not conducted with written records and the attendance of the parties or their representatives? The atmosphere at the judge meeting was often quite casual and they could speak their minds. The President would wait for the moment when they reached a consensus or most opinions were exposed and then a conclusion was made as their majority opinion. If there was no objection or resistance, the President would announce it as the Tribunal’s decision or ruling. It could be seen that voting was not adopted in the judge meeting and the article over the scenario in which the vote of the President would be decisive when the votes were evenly divided was in fact never applied. Apart from presiding over the Tribunal session and convening judge meetings, the President was also responsible for handling daily business and signing important documents such as declarations, orders, and summonses. The matters concerning important trial procedures had already been decided at the judge meeting and the General Secretary assumed total control over administration, management, human resources, and funds with the President having nothing to do except giving his approval as required. Therefore, the task for handling daily business and signing documents was not a heavy burden. As an agency established by the GHQ, the Tokyo Tribunal was under its control: all the Tribunal staff below the General Secretary were directly appointed by the GHQ or the General Secretary except for the judges who were recommended by their countries and confirmed by the Supreme Commander. All the administrative work, human resource arrangements,

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funds, and expenses were conducted by the General Secretary directly with the wishes of the GHQ.  Overall, all these things were carried out solely by the Americans. The judges did not care about them, while the President only listened to the General Secretary’s report and signed his name or sealed the documents with the Tribunal’s signature, which would not take him much time. In conclusion, the President’s work was not heavier than the judges, although he could use more energy and be more focused during the Trial and judge meeting. After court every Friday afternoon, the President would be busy with packing his luggage and preparing to go for the weekend to a specified place, much like the other judges. (Note: The Tribunal often took a two-day recess during the week. The judges were inclined to tour around other cities or suburban areas outside Tokyo. The judges who were interested in hunting, swimming, or playing golf would take a weekend tour every week, so they could not be found during the weekend. Endowed with beautiful landscapes, Japan was famous for its various tour destinations, hot springs, and service industry. Therefore, the Tribunal had made arrangements for the judges’ weekend tours. The judges also regarded those tours as the most pleasant “events” during their lives in Tokyo.17)

 The HQ, Supreme Commander for the Allied Powers, was very considerate and generous with the arrangements for the judges’ tours on weekends and holidays. Once informed by a judge about where he planned to go, what type of transportation was needed, where he would stay, how many companions he would be accompanied by, and how many rooms and cars he needed, the General Secretary would notify the HQ, and the latter would inform the relevant parties to make arrangements. All their travels were cost free. It was said that those travel expenses were kept on the account of the judge’s country which would be deducted from Japan’s war reparations. During a longer Tribunal recess, they could make longer travel plans. In May 1946, when the Tribunal recessed for two weeks, judges from China and the United States asked for a plane, accompanied by a dozen companions (including five crew members) to travel in China, touring Shanghai and Peking for 10 days. Before the Tribunal officially opened its session, judges from China, the United States, New Zealand, Canada, and the Netherlands also asked for a plane to travel across Japan. In the spring of 1947, the Tribunal had another short recess, and the Chinese judge along with 14 companions toured Kyoto, Osaka, and Kobe for about one week. Apart from two secretaries, most of the companions were the judges’ friends and the Tribunal staff were eager for free travel. For their convenience, the HQ arranged a carnival float named “Heaven” (originally used for Tenno’s travels), a number of rooms in Kyoto’s most luxurious hotel, and a car or a jeep according to their rank. The HQ had shown great care and generosity toward the judges’ tours. The reasons could be attributed to two aspects: first, to present their emphasis and preferential treatments could lessen the exposure of the US military’s control over the Allied Powers’ 17

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The President was also assigned with another small task: social interaction. When the 11 judges were invited by the senior officials or the delegate of the Allied Powers for dinner, the President would sit in the middle and make certain concessions, such as a toast or a speech of thanks on behalf of the judges. If some special guests were in attendance at the Tribunal session (i.e. a prime minister, minister of foreign affairs, or senior military official) he would inform the judges and a simple reception ceremony to welcome them as suggested by the General Secretary or required by the judge from the visitor’s country would be held. However, social interaction was rare, less than once in a month. Although the judges were often invited to join celebrations, welcome receptions, banquets, or cocktail parties, the Tribunal itself as an organization and the judges as a group had never held a banquet or party, because the western legal traditions prescribed that the judges should be independent and transcendent, not suitable for engaging in many social functions. Their communication in Japanese was also strictly forbidden, and their residence, the Imperial Hotel, was heavily guarded against any Japanese except for the hotel attendants. The above is a brief description of the President and other judges’ roles, work and daily life in Tokyo. occupation of Japan; and second, because the judges’ travel expenses were covered by the reparations provided by the Japanese Government, it was cutting a large thong of another man’s leather for the United States. Additionally, the promise to deduct the travel expenses from future Japanese reparations, which the Allied Powers deserved, was futile. Those judges, who were fully aware that Japan’s payment was wishful thinking, were very glad to take the opportunity to feel the luxury. That was the reason why the judges were so interested in weekend tours and travel outside Tribunal duties. However, the judge’s luxury would be pale in significance compared with that of the US generals who were stationed in Japan. For example, the Chief of Staff of the Allied Powers occupied a garden house as his residence, which was originally owned by a Japanese minister, and led a luxurious life there. He had 60 to 70 Japanese servants. The number was cut to about 40 after it was reported and criticized by US journalists. The Commander of the Eighth United States Army also led a luxurious life in occupied Japan. Two of the numerous Japanese servants he had at his disposal were famous ice cream masters in Japan, who could turn ice cream into various forms of animals and plants as well as planes and warships. One day when the judges were treated by the Commander with those exquisite ice creams, they were amazed and admired them. Douglas MacArthur, the Supreme Commander for the Allied Powers, had a much more luxurious life. When he ate or invited guests for dinner, he would ask eight Japanese servants who wore traditional Japanese garment to stand by, an extravagance which was usually privileged by a king. These facts might reveal the luxury of the American military officials and their exploitation of Japan’s resources. US journalist exposed their acts and revealed their luxurious lifestyles. For example, they reported in the newspaper that in the Imperial Hotel where the senior staff of HQ and the judges lived, every guest had three and a half servants on average.

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2.4   International Prosecution Section The International Prosecution Section is a part of the General Headquarters of the Supreme Commander of the Allied Powers. However, for the Tribunal, it is also a prosecution organ, serving as the plaintiffs for the 11 countries during the Trial. (The GHQ had set up many specialized sections or groups to implement the Japanese Instrument of Surrender. There were two sections accounting for related legal affairs and war criminal trials: the Legal Affairs Section and the International Prosecution Section. To avoid any conceptual confusion, we should know their nature and corresponding powers.) Apart from the general legal affairs arising from the daily operations of the GHQ, the Legal Affairs Section was also in charge of the extradition of Japanese war criminals, the prosecution, arrest, and investigation of Class-B and Class-C war criminals, and organizing tribunal for their trials. Most of the tribunals established by the Legal Affairs Section were temporary, often consisting of three to five military judges with only one or several war criminals who were prosecuted for conventional war crimes. The trials were often swiftly conducted by summary procedures. Because most of the trials against the Class-B and Class-C Japanese war criminals were held in Yokohama, they were often collectively called the “Yokohama Trials” by the Japanese to differentiate from the Tokyo Trial, which was against the Class-A war criminals held by the International Military Tribunal for the Far East. The organizing of the Yokohama Trials and the arrest, investigation, and prosecution were assumed by the Legal Affairs Section, conclusively by the Americans. However, to show their neutrality, they often invited a few people from the Allied Powers, for example the two Chinese who were in charge of investigating and collecting evidence during the Yokohama Trials. In other trials, the Chinese Military Delegation was also invited to send a judge. All in all, their acts were out of a formality. From prosecution to judgment, the Americans had been in charge of all the trials. For the Allied Powers who wanted to avoid America’s manipulation of trials, the only way was to extradite some of the Class-B and Class-C Japanese war criminals to their countries for trial using the excuse that those war criminals had done direct damage to those countries. For example, in 1946, pressed by the Chinese people, the Nanking Government was forced to ask for trials of some Class-B Japanese war criminals such as Hisao Tani, Takashi Sakai, and Rensuke Isogai. Except under special

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c­ ircumstances, the GHQ could not refuse the Allied Powers’ extradition requests.18 Except for a few Japanese war criminals who were extradited to stand trial in the Allied Powers, other Class-B and Class-C war criminals were arrested, investigated, and prosecuted were under the charge of the Legal Affairs Section, and their trial was also designed and organized by that section. The above is the main duties and powers of the Legal Affairs Section. The duties and powers of the International Prosecution Section were much different as it was specifically established to deal with major Japanese war criminals (Class-A war criminals). The Potsdam Declaration had demanded in its clauses that the major Japanese war criminals be severely sanctioned, and accordingly asked for organizing an international tribunal to try those war criminals. However, such an international tribunal was solely responsible for trial, and its “international” character would bring about unwieldy procedures, calling for a specialized department and a large pool of staff to conduct preparatory work and prosecution. The International Prosecution Section (IPS) was therefore established. The job of the IPS was hard and complex; however, it also had great powers. Before the Charter was published (i.e. in the initial stage of occupying Japan) the IPS was ordered to select the address of the Tribunal, construct the building, and decorate its interior. More importantly, it created the list of Class-A war criminals, arrested them, investigated them, and collected oral evidence from the criminals. After the Charter was published, the IPS sent staff to relating organizations and persons in Japan and other Allied Powers to search for, compare, and analyze evidence, finalize the list of defendants, and draft the indictments. 18  According to general International law principles, the declarations jointly made by the Allied Powers’ leaders and the decision by the Far Eastern Commission, once a country requested that the GHQ extradite the Class-B and Class-C Japanese war criminals who conducted atrocities in that country, the GHQ could not reject it. The Nanking Government asked the GHQ to extradite those criminals because they had committed multitudinous atrocities during the Japanese invasion, among which, Hisao Tani was one of masterminds of the Nanjing Massacre. The Nanking Government also intended to ask the GHQ to extradite Iwane Matsui, the principal criminal of the Nanjing Massacre, Kenji Doihara and Seishirō Itagaki, for whom the Chinese people had an undying hatred. The government finally gave up because those war criminals were listed as Class-A criminals who were to be tried by the International Military Tribunal for the Far East and later sentenced with capital punishments. If they were extradited to China, the incumbent Nanking Government would be likely to impose much more lenient punishments, possibly acquittals, as was the case with Yasuji Okamura, Commander-in-Chief of the China Expeditionary Army and the creator of the Three Alls Policy (kill all, burn all, loot all).

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Before the Tribunal opened its session, the IPS would bear the responsibility of all the prosecution work during the trial, such as providing documents, witnesses, and materials to support the crimes of the defendants indicated in the indictments, examining the witnesses it provided or who were provided by the defendants, join in-court arguments, and making closing statements regarding the defendants and the cases under trial. In view of the large number of cases, defendants and witness and materials, and the complexity of the cases, the prosecution work was quite hard, calling for the support of human and financial resources from the GHQ. Meanwhile, the power of the IPS and its use of power upon the prosecution of Japanese war criminals and the Trial were influential. In this sense, the person who was in charge of IPS must have been an American, and Douglas’s American crony. That person was Joseph Keenan. Mr. Keenan was the chief prosecutor for the IPS and the legal counsel to the Supreme Commander. He was also a close friend to Douglas. Before the tribunal was established, he was appointed to be engaged in much of the preparatory work, such as the selection of the tribunal address, construction of the tribunal building, arrest and investigation of Class-A war criminals, collecting of evidence, drafting of the tribunal charter, and indictments. During all that, he may have made reference to the Nuremberg Trial, but considering the differences between Germany and Japan, the preparatory work was formidably laborious. When the Charter was published on Jan. 19, 1946, Mr. Keenan was appointed as the Chief Prosecutor, officially responsible for all the prosecution work. The great powers of the Chief Prosecutor were the most prominent feature of the Charter, which was also different from the Nuremberg Charter. According to the Nuremberg Charter (Article 14), the four countries (the Soviet Union, the United States, the United Kingdom, and France) had their own chief prosecutor and equal in status, undertaking duties individually and acting in collaboration. For the matters to be decided, they would be decided by a majority vote.19 In the Nuremberg Trial, the 19  Article 14 stipulated that “each Signatory shall appoint a Chief Prosecutor…”, “The Chief Prosecutors shall act as a committee…”, “The Committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation”, and “if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, or the crimes with which he shall be charged, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried, or the particular charges be preferred against him”.

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judges were similar to those of an ordinary court in which all the judges were equal and had equal voting right. Although the Tokyo Charter adopted a voting mechanism as in the Nuremberg Charter, it stipulated a presidentialism. Article 8 stated, “the Chief of Counsel designated by the Supreme Commander for the Allied Powers is responsible for the investigation and prosecution of charges against war criminals within the jurisdiction of this Tribunal, and will render such legal assistance to the Supreme Commander as is appropriate”. As Article 8 indicated, all the war criminals within the jurisdiction of the International Military Tribunal for the Far East, the Class-A Japanese war criminals in this Tribunal, will be investigated and prosecuted under the sole charge of the Chief of Counsel, who was appointed by the Supreme Commander. Although the IPS was a large organization with many staff, only the Chief of Counsel had the right to decide. The Allied Powers (the United Nation in the Charter) could only send or appoint one associate prosecutor to assist the Chief of Counsel. Apparently, the associate prosecutors were subordinate to the Chief of Counsel, different from the relationship between the judges of the Allied Powers and the President of the Tribunal. It was called presidentialism, even dictatorship, or exclusive authority. Those associate prosecutors were only assistants. Additionally, attention must be paid to the following: the Tokyo Charter stipulated that the countries entitled to recommend judges were the signatories to the Instrument of Surrender, India and the Commonwealth of the Philippines, whereas the associate prosecutor may be sent by any “United Nation with which Japan has been at war”. In fact, only the countries that sent judges had appointed associate prosecutors. Furthermore, the Charter stipulated that the judges, President, and chief of counsel be appointed by the Supreme Commander, but not the associate prosecutor. Therefore, it would be convenient to replace the associate prosecutors who resigned during the Trial, which did not attract the public attention or protest. The associate prosecutors sent by the Soviet Union and India resigned halfway through the Trial and were swiftly replaced or taken by other counsel. It was common throughout the Trial that the associate prosecutors returned for long or short leave and their work was temporarily taken over by other people. Although the Charter did not endow those counsels with great powers or significant status, the Allied Powers were quite serious about sending their associate prosecutors for the whole world, particularly the Asians

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who suffered the most, gave ear to the prosecution of the Japanese war criminals. Most of the associate prosecutors were experienced and had a good command of law with an average age of 50 years. The American associate prosecutor was also taken by Mr. Keenan, a wealthy American lawyer who served as Assistant Attorney General in the United States. China sent Hsiang Che-Chun, the chief counsel of the Shanghai Higher Court. The United Kingdom sent A.S. Comyns Carr, a liberal member of Parliament and Queen’s Counsel. S.A. Golunsky, a corresponding member of the USSR Academy of Sciences, was sent by the Soviet Union as an associate prosecutor. Australia appointed A.J. Mansfield, a judge from the Queensland Supreme Court as its associate prosecutor; Canada was represented by H.G. Nolan, a brigadier and the Vice Adjutant-­ General at National Defense Headquarters; the Netherlands sent W.G.F.  Borgerhoff Mulder, a justice from the Hague Special Court to Tokyo; New Zealand sent R.H. Quilliam, a prosecutor of Supreme Court. Govinda Menon and Pedro Lopez represented India and the Philippines, respectively, during the Tokyo Trial.20 Most of the above 11 associate prosecutors served a complete term during the Trial except for Golunsky who resigned within less than six months due to his health and his position was taken over by his assistant prosecutor, Nicolai A. Vasiliev, third class national judicial counsel. Menon, who had nothing to do in Tokyo, went back, but the India Government did not send another prosecutor but entrusted Menon’s work to Mr. Comyns Carr. During the final stage of the Trial, Mansfield also returned to Australia and handed over his work to Mr. Quilliam. Because the IPS adopted a form of presidentialism, the absence of several associate prosecutors did not affect its work. The office of the IPS was on the third floor of War Ministry Building. Apart from a fairly large room for Mr. Keenan, other associate prosecutors and their assistants were arranged within a room. Each room was a group, named the China Group, the Soviet Union Group, and so on. Most of the associate prosecutors came to Tokyo alone and had neither staff nor materials, therefore, such a grouping was unnecessary. The prosecution was directed by Mr. Keenan and implemented by his American assistant prosecutors, most of whom were US military men or civilian officers who had been trained in law and obtained legal qualifications. Often, they had 20  R.L.  Oneto, the French associate prosecutor in Tokyo, was missing in Mei’s draft.— Editor’s Note.

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greater powers than the associate prosecutors did. Frank S.  Tavenner, David Nelson Sutton, and Thomas H. Morrow were Mr. Keenan’s friends and right-hand men, the most popular people in the IPS.21 When Mr. Keenan was on holiday, he usually directed Tavenner to take over his job, but sometimes Comyns Carr. He was not only rich in knowledge and experience, but also elegant in attitude, swift in thinking, and sharp in teeth. He did an excellent job whether conducting legal court defense, or in witness examinations (questioning the witnesses provided either by the prosecution or the defendants). He not only stood out among the associate prosecutors for his wit and capabilities, but also for his reputation in the Tribunal and formidability among the defense counsels. His popularity went far beyond the political Chief of Counsel, and even the American assistant prosecutors could not hold candles to him. Therefore, in the event that Mr. Comyns Carr was not a close friend to Mr. Keenan or the Supreme Commander, the Chief of Counsel had to rely on him (Fig. 2.4). As pointed out above, the grouping in the IPS was meaningless. First, the prosecution work was in whole burdened by the Chief of Counsel and his many American assistant prosecutors, a practice that was not adopted by the Nuremberg Tribunal where each nation was assigned with respective prosecution work. Second, the associate prosecutors sent by the 11 countries came to Tokyo alone, lacking the personnel necessary for a group. So, based on their capabilities, they were assigned by the Chief of Counsel with some work. As to the prosecution that may concern his country, he at most could give advice and make contacts with his country to collect some materials and necessary witnesses. There was an exception. The Soviet Union group played a role. First, its associate prosecutor did not come alone or accompanied by one or two secretaries, but take over ten people. Supported by its own staff, the Soviet group could easily take good care of its prosecution work and did not have to rely on the Americans. Second, different from other capitalist countries, the Soviet Union’s isolation policy and secrecy system made it difficult to be watched or understood, therefore, the evidence that Japan invaded the Soviet Union had to be collected and provided by itself. Moreover, its 21  The American assistant prosecutors were most favored by the Chief of Counsel and were the backbone of the IPS. However, the turnover of the prosecutors was high. They served at the GHQ and were often called by the Chief of Counsel as he deemed necessary. Once they completed their service period, they would leave Tokyo and soon be replaced by the freshmen. However, the most popular men, such as Tavenner and Sutton, served at the IPS nonstop during the Trial.

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Fig. 2.4  Prosecutors of International Military Tribunal for the Far East

prosecutors had to find and examine their witnesses and counter-argue the witnesses and evidence provided by the defendants. Meanwhile, the prosecution against Japan’s invasion of the People’s Republic of Mongolia was also done by them. For the above reasons, the Soviet group was independent during the prosecution, and its leader (Golunsky, then Vasiliev), Laginsky, Rosenblit, and other colleagues, had played a primary or significant role in prosecuting Japan’s invasion of Soviet Union and the Mongolia.

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China group’s human resources were still manageable among the IPS. However, the history of Japan’s invasion was long and the prosecution was complex, so most of the prosecution work was done by the Chief of Counsel and his American staff. The Chinese counsels only offered necessary assistance. Due to the corruption of the government at the time, it did not give due attention to the Tribunal, only allowing two secretaries (Henry Chiu, i.e. Qiu Shaoheng, and Liu Zijian) to accompany Hsiang Che-Chun. As the Trial proceeded and after repeated requests, in the later period the Nanking Government allowed an addition of counsels (Ni Zhengyu, Wu Xueyi, E Sen and Gui Yu) to assist. With the help of the newcomers, China group started to make progress, and it had played an important role in collecting additional evidence against Japan’s invasion of China and examining the witnesses provided by the defendants. In the classified archives of the Japanese government, Wu and Liu found a lot of convincing evidence against the crimes committed by Kenji Doihara and Seishirō Itagaki. As additional evidence, the prosecution section later submitted them to the Tribunal. When Seishirō Itagaki was called to testify in the Trial, Mr. Ni made a spectacular examination against him, which later contributed to the Tribunal’s sentence of capital punishment on Itagaki. Other groups were figureheads during the Trial, expect for the importance shown by their assigned tasks by the Chief of Counsel. For example, the prosecution may provide a flawed but critical document for evidence (against which the defense may object even open the door for oral arguments), or examine a cunning defendant of great importance or the witness provided by the defendants (whom should be carefully examined in every possible means), and Mr. Keenan would have to rely on that English associate prosecutor. Obviously, the number and difficulty of the associate prosecutors’ tasks were much more dependent on their capabilities. In general, these associate prosecutors may excel than the American ­counterparts. However, thanks to Mr. Keenan’s self-centered considerations, the latter had more opportunities to “show” themselves before the Tribunal, taking down two thirds of the time that the prosecution joined the Trial. In other way, Mr. Keenan was an American politician exemplified by his strong sectionalism who tried to frame the prosecution work of the Tokyo Trial into an American-led play. He often regarded his choice of non-­American associate prosecutor as his last resort. This was the very reason that the associate prosecutors and assistant prosecutors from the Allied Powers felt frustrated and irritated during the time-consuming trial.

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The IPS held a meeting every week. The associated prosecutors from the Allied Powers and some specially invited American assistant prosecutors were allowed to attend. The meeting was chaired by Mr. Keenan, Tavenner, or Comyns Carr when the Chief of Counsel was absent. During the meetings, it was usually discussed what kind of work the IPS could do during that week, how to assign the work, and who should do it. For example, when the prosecutors provided witnesses and evidence before the Tribunal, it would be decided during the meeting which evidence could be provided, who would examine it and offer counter-arguments when it was defended before the Tribunal; when the defendants provided witnesses and evidence, during the meeting they would come to a conclusion over who would make defense arguments against the witnesses and evidence. During the meetings, all the associate prosecutors and some specially invited American assistant prosecutors (the non-American assistant prosecutors, advisors, and secretaries were never invited) could express their opinions, to which the Chief of Counsel pretended to listen to carefully. However, all the critical and strategic issues were manageable in his eyes, because he had the final say over all those issues. Once challenged by other associate prosecutors, he had a card up his sleeve, saying in a threatening tone, “Please pay attention to the Tokyo Charter. The Chief of Counsel is responsible for the investigation and prosecution.” The challenger had to give up. It was reported to have happened several times between him and the Soviet Union associate prosecutor. Mr. Keenan had some political wits and often acted in a feigned manner. He had a good relationship with Douglas and had some connections with the incumbent President Truman. He pretended to respect the opinions of the Allied Powers and tried to build relations with other prosecutors with regard to dealing with the trial of the war criminals, but he still provided a shield for the criminals and tried to restore Japan’s militarism. Every choice he made could have been based on Truman’s and Douglas’s preferences. In leading and presiding over the IPS, that was powerful in authority and the number of staff, Mr. Keenan dictated everything and chose America over other countries. He laid bare his domineering and arrogant attitude not only within the IPS, but also before the Tribunal.22 22  The following two cases best illustrated it. Four days before the Tribunal opened its session, the members of the bench met him. He handed over the indictments to the President

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Mr. Keenan’s attitude and tone cannot but invite the judges’ disdain, particularly Webb’s, who would take every opportunity to challenge him before the Tribunal. For example, on the first day when the Tribunal started trial, Mr. Keenan read his lengthy opening statement with certain delight, Webb broke in, “your provocative words are of no benefit to our trial”. His face soon turned red and he threatened to resign. On another day, he was once again rebuked by Webb when he gave an eloquent speech about how Japanese businessmen, tycoons, and arms dealers lived under the threat and control of warlords and excuse their involvement in Japan’s invasion. Because the International Military Tribunal for the Far East adopted the Anglo-American trial system in which the prosecutors and the defense counsel were equal (Keenan was often called Chief of Counsel of the Prosecution), and special treatment was given to either the Chief of Counsel or other counsels unlike within the civil law system. Accordingly, on the one hand, Mr. Keenan had to accept Webb’s admonishment and was unable to retaliate. On the other hand, the judges supported and agreed with Webb’s censure against him. In their mind, they were unsatisfied with his arrogance and intention of framing the Trial in an American play. Besides, the toughness imposed upon the Chief of Counsel and the prosecutors might add to the gesture of “fair trial”, conveying a message that the Tribunal treated all parties with impartiality, which was beneficial to the image of the Tribunal in the world and to the Japanese people. After several castigations before the Tribunal, Mr. Keenan was humbled. However, as he took the positions of the chief prosecutor, the Chief of Counsel of IPS, and the legal advisor to the Supreme Commander, he and briefly made an introduction, declaring that he had distributed copies of those documents in the Japanese language to each defendant. The President accepted, then asked the General Secretary to record it and told Mr. Keenan to read it once the Tribunal opened session. In Anglo-American law, it was called proceedings in chamber, a normal operation. This was the first gathering of all the judges and the meeting with the Chief of Counsel. Within less than half an hour, they left. To their surprise, Mr. Keenan said the indictments were “handed down to the Tribunal” in a press release. The judges were annoyed about his phrase of “handed down” and self-proclamation of superiority. This event could have fueled Webb’s admonishment when the Tribunal first opened its session. We can also see his arrogance at other events. According to the Tokyo Charter, any document handed over to the Tribunal should be in both English and Japanese. One day when Mr. Keenan made a statement before the Tribunal and said, “the American document of this material has been furnished and delivered to all parties”. He referred to it not “English document” but “American document”. How dare him! And how chauvinistic he was! It was not coincidence that he was often reprimanded by the Tribunal, for he deserved it.

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had wielded much leverage over the treatment of major Japanese war criminals and shield policy. Not only did he make the list of the defendants before the Tribunal, but he also drafted the indictments and manipulated the investigations, evidence provision, examinations, and arguments. Furthermore, directed by the American Government and the Supreme Commander, in the name of the Chief of Counsel, he released and left about 40 Class-A war criminals out of the Tokyo Trial with the excuse that the evidence was insufficient to prosecute them. For more details about Keenan providing shelter for, and releasing, the Japanese Class-A war criminals, please refer to Chapter __ of this book.23

2.5   Defendants’ Defense: Japanese and American Counsels The massive defense group and the large number of counsel members were also a prominent feature of the Tokyo Trial, which was much different from that of the Nuremberg Trial. The aberrant organization of defense counsels and their strategy of delaying the trial were accountable for its length. The Nuremberg Charter offered simple regulations on defense in Item 4 of Article 16 stating that “A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.” To safeguard the impartiality of the trial, the criminal had the right to defend himself or appoint other counsel, which was allowed by any legal system around the world. Article 23 stipulated the qualifications of ­counsels for defense that “the function of Counsel for a Defendant may be discharged at the Defendant’s request by any Counsel professionally qualified to conduct cases before the Courts of his own country, or by any other person who may be specially authorized thereto by the Tribunal”. Although it permitted “any other person who may be specially authorized thereto by the Tribunal”, all the counsels authorized to defend the war criminals were in fact qualified German lawyers. Each defendant was entitled to appoint only one defense counsel to defend himself. However, that was not the case with the Tokyo Trial. In Item 4 of Article 9, the Tokyo Charter stipulated that “the accused shall have the 23  Editor’s Note: The original manuscript of this book was unfinished, so the author did not indicate the specific chapter. Chapters 1, 2, 3, and 4 do not provide any information for the author’s tip.

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right through himself or through his counsel to present evidence (but not through both)”. And in Item 3 it stipulated that “each counsel shall be represented by counsel of his own selection, subject to disapproval of such counsel at any time by the Tribunal. The accused shall file with the General Secretary of the Tribunal the name of his counsel or of counsel whom he desires the Tribunal to appoint. If an accused is not represented by counsel, the Tribunal shall designate counsel for him”. The similarity between the two trials was that both charters approved that the defendant had the right to conduct his own defense and to have assistance of counsel. In fact, in both the Nuremberg and the Tokyo Trials, the defendants were all represented by their counsels. Their representations before the tribunals were made on behalf of the witnesses.24 However, the significant distinction between the provisions over defense in the Nuremberg and the Tokyo charters should not be ignored. First, the Nuremberg Charter expressly stipulated the qualifications of counsels for defense, which the Tokyo Charter did not. In fact, the counsels for defense in the Tokyo Trial were also professionally qualified to conduct cases before the courts of his own country and formally approved by the Tribunal. Second, the Tokyo Charter stated that if the defendant could not select his defense, he could apply to the Tribunal to be designated with counsel; in the absence of such request, the Tribunal could appoint counsel for an accused if in its judgment such an appointment is necessary to provide a fair trial. However, all the counsels were appointed by the defendants themselves in the Nuremberg and Tokyo tribunals, and this article was never applied. Finally, the Tokyo Charter also stipulated that the Tribunal shall be entitled to disapprove any counsel that the defendant appointed. As men24  Although the Tokyo Charter stated that the defendant shall have the right through himself or through his counsel to defend, he could not have both. The Nuremberg Charter did not stipulate that, but it did the same. That is part of a judicial system that is adopted by the western countries, particularly Britain and the United States, which goes beyond Chinese understanding. Because the war criminals charged by the Tokyo and Nuremberg Tribunals selected to be defended by counsel, they did not have the right to defend themselves either in the court arguments or making any applications, motions, examinations, and counterarguments. Their counsels were entrusted to handle them. However, the defendants could sometimes be called as witnesses to make statements or testify before the Tribunal. If so, the Tribunal treated them as witnesses and not defendants; the procedure rules that could be applied toward ordinary witnesses, such as the counsel’s examinations, were also applicable to them. All their statements would naturally be testimonies rather than confessions.

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tioned above, the Tokyo Charter had disqualified two American counsels (Smith and Cunningham) by applying that article. According to general legal principles and practices, the Tribunal could take measures or impose punishments against the counsels who displayed a contempt of court or improperly behaved before the court, including disqualifying presentation right. The Nuremberg Trial did not do so, although it was entitled to. It was obvious that the article was a mere reiteration of a common judicial principle or practice, which shed little significance on the matter. In conclusion, there may be differences in the wording of two charters, but they shared the same essence. In contrast, the implementation of each of them varied. Because the number and nationalities of the counsels were neither stipulated in the Tokyo Charter nor in the Nuremberg Charter, each Tribunal had drastic differences in the counsels’ representation. In Nuremberg, each defendant was strictly limited to be represented by only one German counsel; however, in Tokyo, each defendant was represented by several counsels (ranging from two to six) that he appointed, while simultaneously receiving American counsel. The stunning number of counsels for the defendants and the perplexity therein brought about noise and delay for the trial, being the most prominent feature of the Tokyo Trial. It was abnormal for each defendant to have more than one counsel; nevertheless, due to the trial’s complexity, that was excused. However, it was therefore extremely abnormal and unreasonable for each defendant to also be represented by more than one American counsel at the same time. The defendants and their Japanese counsels asked to include American counsels based on the grounds that the Tokyo Charter did not expressly stipulate that the Trial would adopt an Anglo-American procedure. On the contrary, some articles stated that the Tribunal shall not be bound by technical rules of procedure.25 The truth was that the Charter and the procedural rules were formulated and established by experts trained in common law who also held a majority of positions of judges and prosecutors. Japan was a civil law country in that their lawyers were not familiar with those procedural rules and could not apply them properly and easily. With the excuse of ensuring an impartial and swift trial, they then 25  Item 1 of Article 13: 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.

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requested that the Tribunal add counsel, trained in the common law system from the Allied Powers, to assist the defense, particularly in regard to procedures. The request was quickly approved by the GHQ and the Tribunal. At the beginning of the trial, the GHQ intended to invite counsels from the British Commonwealth nations in addition to American counsels so as to avoid the image of Americans tyrannizing all the issues. However, the British Commonwealth nations, including the United Kingdom, Australia, Canada, and New Zealand explicitly rejected assisting the war criminals’ defense and refused to appoint their lawyers as defense counsels. For that reason, the defense counsels trained by so-called common law were actually Americans. As mentioned above, each war criminal that stood before the Tokyo Tribunal had two to three or even five to six Japanese counsels, accompanied by one or two American counsels, so that the Trial was inundated with crowd, noise, and confusion, which was not seen in the Nuremberg Tribunal and was rare in any other international tribunals. The following is a list of Japanese and American counsels for each defendant: Sadao Araki Japanese counsels: Yutaka Sugawara, Komei Kato, and Jiro Deoka American counsel: L.G. MacManus Kenji Doihara Japanese counsels: Kinjiro Ohta, Takahisa Kato, Shigeharu Kimura, and Toshio Kitade American counsel: F. N. Warren Kingoro Hashimoto Japanese counsels: Itsuro Hayashi, Hachirou Okuyam, Kanase Kunji, Toshiko Sugai, and Iwami Hirairi American counsel: E. R. Harris Hata Shunroku Japanese counsels: Masayoshi Kanzaki, Koji Kunitomi and Taitaro Imaari American counsel: A. G. Lazarus Hiranuma Kiichiro Japanese counsels: Rokuro Usami, Yasuo Yasushi, Mori Nori, Tanio Yanai, and Toshio Kitade American counsel: F. N. Warren

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Koki Hirota Japanese counsels: Tadashi Hanai, Shinichi Sawa, and Masao Hirota American counsel: George C. Yamaoka Naoki Hoshino Japanese counsels: Shoichiro Fujii, Masao Masuda, and Masuda Akira American counsels: G. C. Howard and G. C. Williams Seishirō Itagaki Japanese counsels: Hanzo Yamada, Tomoji Sasagawa, Kunkichi Banno, and Kenji Okoshi American counsel: F. G. Mattice Okinori Kaya Japanese counsels: Tsuruo Takano, Yasudo Tanaka, Kunji Fujiwara, Yama Masamichi, and Narahashi Wataru American counsel: M. Levin Koichi Kido Japanese counsels: Shigetake Hozumi and Dido Takahiko American counsel: W. Logan Shiohara Tokisaburo Japanese counsels: Shiohara Tokisaburo, Coretsune Takkem, Abe Akira, and Kitago Tametake American counsel: G. C. Howard Kuniaki Koiso Japanese counsels: Shohei Sammonji, Takagi Kazuya, Kobayashi Kyoichi, Matsuzaka Tokihiko, and Saito Makoto American counsel: A.W. Brooks Iwane Matsui Japanese counsels: Kiyoshi Ito, Kamishiro Takuzem, and Omuro Ryoichi American counsel: F. G. Mattice Jirō Minami Japanese counsels: Oki Toshio, Matsuza Tatsuo, and Giichi Kondo American counsel: A.W. Brooks Akira Muto Japanese counsels: Shoichi Okamoto and Chihiro Saeki American counsel: R. F. Cole Takazumi Oka Japanese counsels: Shinji Somiya, Seiichiro Ono, and Kurashige Tetsuichi American counsels: S. A. Roberts and G. G. Brennan Hiroshi Ō shima Japanese counsels: Tatsuoki Shimanouchi, Uchida Takao, and Ushiba Nobuhiko American counsel: O. Cunningham

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Kenryō Satō Japanese counsels: Kusano Iguchiro, Sekiga Isaburon, and Inoue Masutaro American counsels: G. G. Brennan and G. N. Freaman Mamoru Shigemitsu Japanese counsels: Tsuneo Yanai, Shizuo Kanaya, Miura Kazuichi, and Rokuro Usami American counsel: G.A. Furness Shigetarō Shimada Japanese counsels: Takahashi Mika, Hachiro Okuyama, Masajiro Takikawa, Kyojima Otoko, Yasuda Shigeto, and Suzuki Isamu American counsels: G. G. Brennan and E. R. Harris Toshio Shiratori Japanese counsels: Nobuo Naritomi, Makoto Sakuma, and Yoji Hirota American counsel: C. B. Carlyle Teiichi Suzuki Japanese counsels: Kenzo Takayanagi, Kaino Tsuko, Kato Ippei, and Fukushima Jyum American counsel: M. Levin Shigenori Togo Japanese counsels: Nishi Haruhiko, Kato Katojiro, and Shichida Motoharu American counsels: George C. Yamaoka and B.B. Blakeney Hideki Tō jō Japanese counsels: Ichiro Kiyose, Hiroshi Uchiyama, Shiohara Tokisaburo, and Kahoku Kenjiro American counsel: G. F. Blewett Yoshijirō Umezu Japanese counsels: Miyata Mitsuo, Yoshikage Ono, Sumihisa Ikeda, and Miichi Umezu American counsel: B. B. Blakeney Shūmei Ō kawa Japanese counsels: Ohara Shinichi, Kanauchi Ryosuke, and Fukuoka Fumiko American counsel: A.W. Brooks President of Japan Bar Association (Head Counsel): Somei Uzawa Deputy President (counsel for Hideki Tō jō ): Ichiro Kiyose According to this list, there were over 100 Japanese counsels and 20 American counsels, with a total number of 130. It did not include Yosuke Matsuoka, who died during the Trial, and his two counsels, who were also

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excluded from the total number. Shumei Okawa, although not tried due to mental illness, could be asked to resume to stand for trial; therefore, his Japanese and American counsels were kept on, for the sake of his rights. The number and range of counsels in the Tokyo Trial was staggering, which stood out from all the international trials. The Japanese counsels had a professional organization, the Japan Bar Association, established before the Trial. On May 4, 1946, the day following the Tribunal opening session, the Association held its first meeting, and Fusaaki Uzawa, the then gray-haired lawyer, was voted as its President, also the general counsel for the Trial because he had served the President of the Tokyo Bar Association, and was respected for his age and prestige. Additionally, he was also considered innocent during the Japanese fascist regime. He seldom showed himself before the Tribunal during the trial and was polite and modest, assuming an image of a Confucian gentleman. In his few statements, he was often inclined to talk about political philosophy, such as the difference between kingly war (benevolent government) and hegemon’s way and the interpretation of hakko ichiu (all the world under one roof), arguing that the Japanese Government had long been attaching importance to peace, democracy, fostering harmonious and peaceful relations with good faith, and maintaining world harmony. He further claimed that the Japanese Government opposed the use of force and invasion. He liked to pretend to admire the Chinese judges by emphasizing that all those ideas came from China. In their first meeting, the Association also voted Ichiro Kiyose as counsel for Hideki Tō jō , as its Deputy President. Kiyose was a crafty old-­ fashioned Japanese politician. He will be discussed more later. Most of the ordinary counsels were all renowned legal experts in Japan before the War. A few counsels were selected because they were friends or relatives of the defendants. Generally, the Japanese were very familiar with the charges and untiring in collecting evidence that favored the defendants. The truth was that they did not show much before the Tribunal; they were more likely to let their more ambitious and threatening American colleagues charge into battle and hide themselves to manufacture weapons. Therefore, they often played by the rules in the Tribunal. There was, however, an exception. Some Japanese counsels were aggressive before the Court, as exemplified by Ichiro Kiyose who was an accomplice in the fascist regime before World War II.26 It was unimagi26  He was an active politician after the allied occupation of Japan ended. He then ascended among the important figures of the Liberal Democratic Party. During Nobusuke Kishi’s and Hayato Ikeda’s regimes, he served as the Speaker for the House of Representatives and, in

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nable to allow him to present before the Tribunal. In the Nuremberg Trial, all the counsels for the defense were under strict scrutiny; anyone who was connected with Hitler in any way would not be allowed at the trial. However, that was ignored by the Tokyo Tribunal and led to the increasing arrogance and aggressiveness of the Japanese counsels.27 Ichiro Kiyose was atrocious when speaking before the Tribunal, protesting against the evidence documents and counter-examining the witnesses provided by the prosecutors; for that, he was often stopped and reprimanded by the Tribunal. Surprisingly, in his defense, he tried to ­justify Japan’s imperialist theories and embellish fascist Japan’s war policies. On the cover for his defense statement, he furtively wrote “This is a historical document”, which was criticized by the Tribunal. Nevertheless, the Tribunal made no disapproval of Ichiro reading his defense statement. Among the 100 Japanese counsels, Kenzo Takayanagi was another that deserves mention. As a renowned professor with the Tokyo Imperial University for his rich collection of writings, he was an authority in Japan’s legal field and was Teiichi Suzuki’s counsel during the Tokyo Trial. However, he did not expand much before the Tribunal except for reading his lengthy “Tokyo Trial and International Law” in the final stage of the trial.28 Regarding his knowledge and personal character, he was much respectable among the Japanese counsels. Nagoya, established a monument to the seven war criminals executed by the Tokyo Tribunal, turning them into martyrs and national heroes. The fund, 5 million yen, for constructing such a monument was raised by Ichiro Kiyose, Shohei Sammonji, and Itsuro Hayashi and the opening ceremony was chaired by Kiyose. 27  The Tokyo Tribunal barely scrutinized the counsels because the duty for selecting Japanese and American judges was assigned to the GHQ. Therefore, some politicians serving the warlords, such as Ichiro Kiyose, were also appointed as counsels for the defense. Additionally, even some of the war criminals’ colleagues or their subordinates were permitted to defend before the Tribunal (i.e. Umezu’s Japanese counsel, Sumihisa Ikeda, a lieutenant general who acted as the head of Division V of the Chief of Staff of Kwantung Army and then the deputy Chief of Staff under Yoshijiro Umezu). In 1942, under Umezu’s command, he led an army to Southeast Asia to study the military occupation systems established by the Japanese and to formulate a plan to occupy the Soviet Union’s land. As were Umezu and other military leaders of the Kwantung Army, Ikeda was also extremely hostile to the Soviet Union. It was said that the prosecutors of the Soviet Union applied to reject Ikeda to represent, but Mr. Keenan refused to approve that with the excuse that the substitution of defense counsel midway through the trial would be deemed unfair to the Japanese. 28  His paper was included in The Tokyo Trials and International Law published by Yuhikaku Publishing in English-Japanese version. His famous book, The Philosophy of Law, was ever published in Chinese translation by China’s Dadong Publishing before the War.

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Other than the above three counsels, most were mediocre and unnoticed during the Trial. They did not try very hard during the Trial and would instead let their American counterparts attend to the important or critical documents or witnesses, although they would sometimes offer additional explanation, objection, and examining as necessary. Although the American counsels did not have a formal organization such as the Japanese did, they had a leader as their representative. First there was Beverly Coleman who acted as Hideki Tō jō ’s counsel and later George Yamaoka who was an American-born Japanese and took Coleman’s position after he returned to America. However, the true American counsel for Hideki Tō jō was George Blewett, a board member of Columbia University, a rich American lawyer, and the most prestigious among the American counsels. Coleman was very ambitious. Before the Tribunal opened its session, he requested that the GHQ and the Tokyo Tribunal establish an International Defense Section, equal to the International Prosecution Section. The judges held a special meeting pertaining to that request. It was, however, rejected on the grounds that it was an unavoidable responsibility to prosecute the Japanese war criminals and give them a fair trial, but it did not include providing defense for those war criminals. The Tribunal permitted the American lawyers to join the defense because they wanted them to help the accused choose their Japanese counsels during the procedures. Defense is the right of the accused but not an obligation of the Allied Powers. Therefore, establishing such a section in GHQ was unnecessary. The GHQ later rejected Coleman’s request on the same ground, at which time Coleman resigned and returned to America. During the long-­ lasting Trial, there were about 10 American counsels in addition to Coleman who tendered their resignations and also returned to America, including both Guyder and Young.29 The non-military men, such as Blewett, recruited from the United States to provide counsel for the accused did not have any service end date and continued their jobs until the Trial concluded. The 10 mentioned above were not listed among the American counsels; there were as many as approximately 40 American lawyers if all were to be counted. Combined 29  Most of them were military men with legal qualifications. When their service period expired, they were eager to go home, and their positions were handed to other people. However, some of them chose to stay and continue their service of counsel.

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with over 100 Japanese counsels, the defense had over 140 counsel members, a very significant number. That about 20 accused were defended by over 100 counsels did not occur in the Nuremberg Trial, or in any other court or trial. How generous of the Tokyo Tribunal in ensuring that the rights of the accused would be defended. As pointed out previously, the reason that each defendant was permitted to have an American counsel was to help the Japanese counsel with the trial procedures and techniques. Some of them were recruited from America, while the others were working at the GHQ. However, their salaries were paid by the Legal Section of the GHQ, not by the defendants or the Japanese Government. Therefore, their jobs were rather self-evident: they were to act as assistants or technical advisors. Compared with the Japanese counsels appointed by the defendants themselves, they were secondary. As the Trial proceeded and the international circumstances fluctuated, the American counsels took primary position, while the Japanese worked behind the scenes, at least when before the Tribunal. During the Trial, most of the issues that caused contention and tension were caused by the American counsels, and the following example demonstrates their unscrupulousness. On May 14, 1946, the defense counsel applied to the Tribunal to remove the 39 crimes listed in the indictment. The crime alleged was the killing of Admiral Kidd and other naval officers and sailors when Japan bombed Pearl Harbor. Blakeney argued, “if the killing of Admiral Kidd by the bombing of Pearl Harbor is murder, we know the name of the very man whose hands loosed the atomic bomb on Hiroshima, we know the chief of staff who planned that act, we know the chief of the responsible state”.30 Obviously, the chief of staff being referred to was President Truman who was then the Commander-in-Chief of the US Army according to American Constitution. It was President Truman who decided to conduct atomic bombings on Hiroshima and Nagasaki. He dared to equate his own nation’s act to the Japanese war crimes in a Tribunal that were trying these war criminals. It was inappropriate to connect a war crime with a US military act during the war when those war criminals were tried by the Tokyo Tribunal.

30  Transcripts of Proceedings and Documents of the International Military Tribunal for the Far East (May 14, 1946), p. 212.

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The American counsels also sometimes showed a lack of intelligence as the following example showed: The International Prosecution Section wanted to demonstrate that the Japanese imperialists had been instilling aggressive and invasive ideas into their youngsters through schools, so it called Tamon Maeda, a Japanese educator to testify before the Tribunal. On August 2, 1946, Captain Kleiman examined him after Maeda presented his affidavit. He questioned, “you said that the military officers instructed the principals of the schools as to the courses and the administration of the school system. Among the courses that were taught in an elementary school, was not Japanese language taught?” The President interrupted, “that is utterly impossible. Was not the Japanese language taught in the Japanese schools?” Kleiman explained, “may it please the Tribunal, now I am truly trying to get answered a question that the Court asked itself, about two months ago, what are these courses that were taught? It has never been brought out by prosecution, and we, of the defense, wish to make the picture clear for the Tribunal. If the Tribunal does not wish the questions asked, I will refrain from them.” The President replied, “the Tribunal does not wish to have that question asked.” Kleiman said, “All right, your Honor … was arithmetic taught to those students?” The President was agitated, saying, “well, that is impossible. This is a serious case. You are before the International Military Tribunal for the Far East trying former leaders of Japan of the greatest series of crimes ever committed against men.” Kleiman continued, “may it please your Honor, is it not important at this stage to show that … these courses which are taught in schools of every country in the world.” The President quelled his anger, and then said, “please continue to put questions”. Then Kleiman questioned, “was music, penmanship, drawing, Japanese history, needle work, taught in the schools?” The Tribunal burst into laughter. The President was furious, saying, “the witness need not answer”. Knowing his well-prepared and funny questions would not be answered, he said in a downcast voice, “no further questions”.31

31  Transcripts of Proceedings and Documents of the International Military Tribunal for the Far East (August 28, 1946), pp. 3145–3146.

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Although they were sometimes refused or criticized by the Tribunal, they achieved the goal of delaying the Trial by all-pervading efforts to utilize the cumbersome procedures of a common law system. As pointed out in the preceding sections, the defense’s strategy of delaying the Trial was the reason why the Tokyo Trial was tardy and took several years. Meanwhile, the international circumstances also fueled their confidence and enthusiasm about implementing their strategy. First, America’s policy of shielding Japanese war criminals and rebuilding Japanese militarism was revealed. As the Trial went on, the American government and the GHQ’s intention of protecting the Japanese imperialists and making them serve the US invasion policies became more and more transparent. They released the Japanese war criminals one by one, and stopped punishing the militarists, which gave the defense counsels’ opportunity to follow trend. They possibly even envisioned that if they delayed the Trial long enough, the GHQ would end the Trial, release the war criminals, and even appoint them to the government again. Second, the United States and Soviet Union relations were increasingly tense. Since the conclusion of World War II, there had been friction between the United States and the Soviet Union. Newspapers were full of reports about how antagonistic they were to each other, giving an illusion that a third world war was around the corner particularly before and during the Berlin wall crisis. The defendants and their defense counsels also had the illusion that if the Trial was delayed long enough, war would break out one day, and international alliance would also change. A Japan that was tied with the United States must be valued. The defendants who were tried before the Tokyo Tribunal would not only be free of charge, but would also embrace a new life by virtue of their invasive blood, taking power and helping the United States fight. The third world war did not break out, the Berlin wall crisis was finally resolved, and the United States dare not defy the world trend to interrupt or intervene in the Tokyo Trial. Most judges were anxious about it. However, because of the Charter’s shortcomings, such as permitting too many counsels to represent the defendants, cumbersome procedures, and disallowing limiting the amount of time the defense counsels could speak, they could do nothing about it. The Tribunal took measures such as formulating alternative steps to the procedural rules, simplifying the judges’ voting, intervening or stopping

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irresponsible or lengthy remarks, and even dismissed two American counsels pursuant to Item 3 of Article 9 of the Tokyo Charter.32 Additionally, it should be noted that such a strategy not only wasted the Tribunal’s time and resources, delaying its progress, but also gave the defendants opportunities to make confusing claims and lengthy statements to publicly spread their ridiculous theories and explanations about Japan’s imperialist invasions, which was the most regrettable thing for the Tokyo Trial.

2.6   Administrative and Personnel Arrangements The administrative and personnel arrangements of the Tokyo Tribunal were conducted by the General Secretary, an American, under the command of the GHQ. Although nominally led by the President, the General Secretary was actually a member of the GHQ, therefore, all his work was directed by the GHQ.  Small matters would be referred to the Chief of Staff for decision; for the bigger matters, he would ask for the Supreme Commander’s approval via the Chief of Staff. The President of the Tribunal signed his name or authorized General Staff to seal some documents, most 32  Although the Charter had provided many applicable powers, the Tribunal did not choose to fully apply them for the purpose of maintaining an image of fair trial. For example, Article 12 stipulated, “the Tribunal shall (i) confine the trial strictly to an expeditious hearing of the issues raised by the charges, (ii) take strict measures to prevent any action which would cause any unreasonable delay and rule out irrelevant issues and statements of any kind whatsoever”; the following one provided that “the Tribunal … shall adopt and apply to the greatest possible extent expeditious and non-technical procedure”, and Item 3 of Article 9 demanded that “each accused shall be represented by counsel … subject to disapproval of such counsel at any time”. Those articles were never seriously applied. The dismissals made by the Tribunal against Smith and Cunningham (as mentioned in the preceding chapter) occurred in the final stage of the trial, which had little practical effect on stopping their delaying strategy. Smith was forced to resign due to his offensive words in March 1947, while Cunningham was suspended from duties in October 1948, not because of his misbehaviors before the Tribunal but for his ridiculous remarks outside the Tribunal. On September 7, 1948, Cunningham attended a conference held by the American Bar Association in Seattle and made a report about the Tokyo Trial. In his report, he criticized and defamed the Tokyo Tribunal, claiming that it was not objective or fair and depriving the counsels’ right of full defense. His report was later published in some US newspapers and became known to the judges. Once Cunningham returned to Tokyo, he was ordered to explain it before the Tribunal, but he stammered and faltered. The judges then reached an agreement that his explanation was unreasonable and decided to suspend his service on the grounds of “defaming court”. Until that time, the Trial had ended its hearing and entered the stage of drafting a judgment.

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of which were only related to the trial, such as to summon a witness, to access a document, to check or dismiss the prosecution or the defendant’s applications, to change the procedures, and to contact the Allied Powers for evidence. All the administrative and personnel arrangements, expenses, and archiving of the Tribunal were not the President’s concern but the General Secretary’s decision. He needed to obey the GHQ’s orders. Therefore, as to administration and personnel, the Tokyo Tribunal was not independent; it was a subsidiary of the GHQ. The GHQ was an American organization, and in that sense, the Tribunal’s administration was also controlled by America, except for some positions of little importance taken by the Allied Powers or the Japanese, such as translation and servicing. We can clearly see that the Tribunal was neither independent nor “international”. Unlike other organizations that establish several departments under the President or leader, and each department is configured with several sections or groups, the administrative and personnel arrangements of the Tokyo Tribunal were totally irregular and unsystematic, and even its department names were not standardized. Its administrative departments and personnel arrangements were established from a practical need and referring to some traditional practices of the western capitalist countries at the same time. The following is a general introduction to some important departments and persons, their powers and work, and their personal characters and style. General Secretary and Secretariat—The appointment and powers of the General Secretary were stipulated in “Officers and Secretariat”.33 The General Secretary was directly appointed by the Supreme Commander, for whom he bore the greater responsibility, although he was legally a member of the Tribunal, led by the Tribunal or its President in certain matters. As mentioned above, he would refer any minor matters to the GHQ for decision and implement it unwaveringly. The General Secretary was the top officer in the Tribunal’s administration, and the director of all the Secretariat’s work and staff. According to the Charter, the General Secretary was authorized with extensive powers and was not only responsible for daily affairs such as court records, sending and receiving documents and archiving, but also to organize and direct all the administrations and personnel within the Tribunal. In that sense, it was more a position like a secretariat of a  Item 2 of Article 3 in Tokyo Charter.

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government department, which was also recognized and named by the Charter. Simply put, the General Secretary in the Tokyo Tribunal was a director of the general affairs office of a government department, and took final responsibility for the department’s administrations and personnel arrangements. Unlike that department, the General Secretary was led not by the Tribunal’s President or the judges, but by the GHQ (i.e. Supreme Commander and Chief of Staff). The General Secretary of the Tokyo Tribunal was Col. Walbridge, an American who was quiet and reticent, often secretive about his actions. Other than attending some judge meetings concerning important administrative matters, he was rarely seen in the Tribunal (Note: The judge meeting that pertained to the trial, such as discussing legal matters or ­making a decision or judgment, attendance by anyone, even the General Secretary). The primary task of Col. Walbridge was to contact the GHQ. We could often see him walk between the GHQ and the Tribunal. Any major administrative measures or personnel substitution would be reported by him to the Chief of Staff or the GHQ via the Chief of Staff. He had the GHQ’s trust. His belief was that the GHQ’s will was everything. He rarely made contact with the President, the judges, or the public. Under Col. Walbridge, there was another Assistant General Secretary, Col. Haney, or often called the Deputy General Secretary. Unlike Walbridge, he was amiable and approachable, and usually seen in the Tribunal. Therefore, the prosecutors, the defense counsels, and other people often asked him or elicited his opinions regarding the Tribunal’s administrations (any application or major request was made to the Secretariat in writing). Any suggestion or request by a judge, such as printing a document or arranging a tour, was made to him. Col. Haney was closer to and most favored by the judges for taking great care with whatever was asked by the judges. There was another secretariat’s officer close to the judges, Capt. Colbert, the Judges’ Aide, a position that was specifically created for the administration of judges’ daily lives and any private or official matters raised by the judges. When the judges went out for tours, he was liable for security, contact, and escort. In May 1946, when an American judge and I went touring around Shanghai, Nanking, and Peking on the GHQ’s plane, Capt. Colbert was our escort, arranged our transportation, accommodation and agenda. At the time when we toured, the war had ended, but China was actually controlled by the United States, although China gained its independence and became one of the Five Powers after the war.

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Along our tour, all the deluxe hotels, traffic routes, and transportation mechanisms of China’s big and strategically important cities were under the US Army’s control. If it were not for Capt. Colbert’s arrangements and coordinating with the US Army, the chaos and difficulties with that tour would be unimaginable. Translation Section—the most important two sections under the direction of the Secretariat were the Translation and the Administration sections. The translation work during the trial was very difficult, requiring a lot of human resources and material support. According to the Charter, English and Japanese were the official languages. Every word or sentence uttered by the President, prosecutors, defense counsels, and witnesses would be simultaneously interpreted, from English to Japanese or vice versa. The listeners could choose their language by turning the switch on the earphone in their desks. If the speaker spoke Chinese, Russian, German, French, or Mongolian, the translators would translate it into English and Japanese. The Court trial often lasted for approximately five hours, therefore, such prompt translation was hard and time-consuming work. Apart from the translations during the Trial, every document that was provided to the Tribunal was also translated into Japanese or/and English. Although some of the documents provided by the prosecutors or defendants were prepared with translated copies, such translation work was also burdensome because the number of documents accepted or issued by the Tribunal was abundant. The Translation Section had difficult and weighty responsibility within the Tribunal’s daily operations because it could influence the trial’s quality and efficacy and be prone to protest and conflicts. The Translation Section needed not only more human resources, but also higher language capabilities. The Language Section was directed by Anderson with Jones as his deputy director, both of whom were Americans. For convenience, they also hired some American Japanese, such as Ytami, who were called the second generation (にせい in Japanese), referring to the fact that they were the second generation of overseas Japanese. Additionally, most of the translators or interpreters working for the Trial were Japanese intellectuals who were proficient in English, some of whom were renowned senior professors, such as Kisaburo Yokota.34 Those Japanese translators and interpret34  He was an international law professor with the Tokyo Imperial University, having fame in international law and a member of the UN International Law Commission. He had been serving as the director of Japanese translation.

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ers were not only abundant in knowledge, but also agile in mind and fluent in English, particularly the younger ones who interpreted during the Trial. Their interpretations were as quick as an automatic machine, satisfying the listeners. However, most of them (20–30 people) were introduced by Japan’s Ministry of Foreign Affairs, and the people from the Allied Powers, especially the judges, were suspicious of their impartiality. The Translation Section was the only administrative department that used non-American people (except for the Japanese servants and staff hired by the administrative management department). Apart from the Japanese translators and interpreters, the Translation Section also borrowed persons for help in some difficult situations. For example, when the Russian and Mongolian witnesses testified before the Tribunal, their translators were borrowed from the Russian military delegate in Japan. When Puyi, Qin Dechun, mayor of Peking when the Marco Polo Bridge Incident broke out, and Wang Lengzhai, special commissioner and magistrate of Wanping County went to testify, most of their testimonies were translated by a member of China’s military delegate in Japan and the Chinese judges’ secretaries. Language Arbitration Board—it was established to address the conflicts arising from the translations. Given the grammatical differences between English and Japanese, translation errors or conflicts were likely to occur. A sentence uttered by a Japanese witness provided by the prosecution was translated into English, and the defense counsel might think it was incorrect and could do damage to the defendant’s defense, he therefore had the right to raise objections and ask for arbitration by the Tribunal. The Tribunal would then immediately convene the Language Arbitration Board and report their results. If it was decided to change the translation, the President would order the recorder to change it accordingly. The prosecution also had such a right. Any party could apply this right against the errors or objections about interpretation and translation and ask the Tribunal to deliver it for arbitration. However, the Language Arbitration Board consisted of three people, and the Tribunal completely relied on the Board to address those disputes, therefore, they could not leave but sit in the Tribunal. The Board’s decision was final. The Board was chaired by Maj. Moore, an American who was said to have taught in Japan for about 20 years. After he returned to the United States, Larft succeeded him. The other two members, Sano and Kakei ( 笕), were Japanese and fluent in English.

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Administrative Management Department—an important department under the General Secretary which bore the most extensive and complex work. In addition to its specially designated work, almost all the other work that was not touched by other departments was under its jurisdiction and was similar to a general service department. The daily shorthand of the Tribunal was also onerous. When the Tribunal opened its session, the Administrative Management Department sent a highly capable person for shorthand, had the record printed after the Tribunal closed session in the afternoon, made it into a bound volume (the shorthand for a five-hour court session a day had 80 to 100 pages), and delivered it to the judges and other relevant parties (i.e. the prosecutors and defense counsels) before eight o’clock for the sake of effective reading and review. If any party found a mistake, they could apply to the Tribunal for correction on the following day once the session was opened. If the Tribunal permitted, the President would announce it and order the recorder to make the correction. That was the only opportunity to correct the record; if something was missed, the record would be final. Because the Tokyo Trial did not choose evaluating of evidence through inner conviction but through evidence itself, the record was key to the trial and the only grounds for the Tribunal making the final judgment.35 Therefore, it attracted special attention from each party. No matter how busy the judges were with their job duties or social activities, they had to review the records before they went to sleep. After years of trial, the record reached nearly 500,000 pages and 10 million words. In addition to the record made from shorthand, the Tribunal also kept an audio record. The job of operating the audio recording machine was the responsibility of the Administrative Management Department, which kept all the documents, records, and archives of the Trial for any party’s application for review or check. 35  The evaluating of evidence through inner conviction means that a judge should not only base his judgment on the evidence accepted by the court, but also on their own conviction of the evidence that he deems proper and his understanding of the facts. It is generally adopted by the civil law countries. Under such a system, the judge has more judicial discretion. In an opposite situation, common law countries generally adopt evaluating cases strictly through evidence, which means that the judge is objectively and strictly bound by the evidence provided by both parties and accepted by the court to make a judgment. In such a system, judges have little judicial discretion and every decision they make is based on evidence. Because the Tokyo Tribunal adopted such a common law system, the evidence and records of the trial were the only basis for the judgment.

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The Administrative Management Department was also tasked with managing hundreds of working staff, Japanese servants, cooks, drivers, cleaners, and others. It was responsible for their appointment and hiring, assignment of work, salary, work duties, rest periods, and labor rules. Hospitality was also under the duties of the Administrative Management Department. When guests of the Allied Powers came and attended the Trial, the Department had to attend them and provide guidance for them. Additionally, if the President or judges held a cocktail or tea party for some very important persons from the Allied Powers, the Department had to prepare for those parties. Distributing seat tickets for ordinary seats and VIP seats to the delegates from the Allied Powers was also tasked to this Department. Although it seemed a small thing, but a mistake could inflict rage and protest. Given that the visitors were not crowded, especially during the final stage of Trial when there were few people sitting there, distribution of the tickets was not that difficult. The tickets for Japanese people were always distributed by Japan’s Ministry of Foreign Affairs.36 Apart from the above-mentioned tasks assigned to the Administrative Management Department, it was also responsible for sending and receiving documents, canteen, procurement, cashier services, and accounting. In conclusion, all the duties that were not assigned to other departments would be in its realm responsibility. However, the ceremony, procedures, disciplines, and maintaining order during the Trial, and the supervision and management of criminals and prisoners were assigned to specialized agencies and personnel, out of the Department’s reach. The head of the Administrative Management Department was E.  R. Harris, who was a US naval officer. There was a deputy head or director, B. A. Hargaden. Harris and Hargaden accepted the commands of the General Secretary and reported any major issue to him arising within the Department. They were the busiest men among the senior staff of the Tribunal. 36  Any time the Tribunal opened its session, the seats for the Japanese were always full of people. It was difficult for the Japanese people to get tickets and was said that the Ministry would allocate two tickets for each defendant’s family every day, and distribute the rest of tickets to the people who queued at the Ministry’s office every morning. To get a ticket, people would turn up at midnight or at dusk the day before. Some of them would sell their tickets for money. According to reports by Asahi Shimbun, the ticket for Hideki Tō jō standing for trial was as high as 800 yen on the black market. Of course, “smuggling” and backdoor trade also occurred among the officers who controlled the tickets for distribution.

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The Tribunal had another set of working staff during the Trial. Although they reported to the Secretariat and accepted commands from the General Secretary, they would follow the President’s commands once they started their job during the Trial. The General Secretary could not intervene in the Tribunal’s trial, and he seldom showed up in the Tribunal. The Marshal of the Court, the Clerk, and Provost Marshal were the most important necessary administrative personnel for the Trial (except for the translators, language arbiters, recorders, and photographers). The Marshal of the Court had greater powers than its name stated. However, the position only conducted ceremonial procedures when the Tribunal opened its session, supervised people’s oaths, and maintained court order. His job was simple and mechanical. Fifteen minutes before the court session began, when all the participant had their seats (they usually took their seats one half hour before the session started), the Marshal would proclaim some important rules for the participants, such as no talking nor laughing loudly, no leaving during the trial, and standing and being solemn when the judges entered, and briefly explained the use of earphones in the seats. When the judges walked in one by one, he would proclaim, “All rise!” Once all the judges took their seats, he then stated, “Be seated!” Then he added, “The International Military Tribunal for the Far East is in session.” When the Tribunal closed its session, he had to say it again, “All rise!” After the judges walked out of the court, other people would be allowed to leave. The Trial was held in four sessions each day (except for Saturday and Sunday) (i.e. 9:30–10:40, 10:55–12:00, 13:30–14:40, and 14:55–16:00). Therefore, the Marshal would perform the ceremony or ritual four times a day, which was mechanical and only a formality. The Marshal of the Court was also assigned with another task, guiding the witnesses into the trial hall, getting them seated, and supervising their comments before they testified. The oath was simple, attesting that the witness would faithfully give testimony and accept punishment if there was any fraud. However, the oaths sworn before the Tokyo Tribunal did not contain any statements such as “in the name of God”, “punished by God”, or “so help you God” because not all the Allied Powers involved in the Trial were Christian countries, and neither were all the witnesses who were called before the Tribunal Christians.37 37  The oaths made by the staff of the Tribunal and the witnesses were different. Before assuming their positions, the staff would swear an oath or make a commitment. In the oaths

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The ceremony for swearing an oath was also simple. The witness and the Marshal stood face to face, raised their left hand, and the former followed and repeated every word that the latter said. Upon finishing, the witness sat down and then gave his testimony, generally reading what was prepared before he came. Once he finished speaking or reading, he could be asked questions or examined by both parties’ counsels. During the entire process of giving testimony, the Marshal would stand or sit near him, like a custodian or protector. When the process was ended, the President said, “The witness’s obligations are now dissolved.” Then he would be guided to walk out of the hall. In the process of open trial, the Marshal would proclaim, “Silence, silence!” if anyone’s act or words triggered chaos or loud laughter from the audience. For example, a counsel asked the Tribunal to recess for two minutes and allow him to leave because he had to answer nature’s call. The President laughed and said, “Your application is truly strange to us, but we still approve it.” The audience also laughed loudly, and the Marshal had to shout, “Silence, silence!” The President also had the right to ask of the Marshal at any time to summon the marshal police to remove or dismiss anyone who went against the Tribunal’s disciplines or court order. The Marshal of the Tokyo Tribunal was Van Meter, who was a burly, bearded and serious US military officer who often spoke in a stentorian voice. Clerk—The Clerk often sat in the middle of the row where all the secretaries sat under the bench. (Note: Clerk is widely used in English to describe such personnel as secretary, shop assistants, and administrators. In a common law court organization, a secretary or a recorder is also called a clerk.) The Clerk of the Tokyo Tribunal was assigned with a specialized task of registering all the evidence materials (namely “exhibit”) accepted by the Tribunal. He was in fact, a document registrar. As explained above, the exhibits were the major or single basis for making judgment, and their acceptance or denial was often the focus of disputes of the General Secretary and the Secretariat’s personnel, there were no deity words such as “so help you God”, as was also the case with the Japanese clerks and translators. However, in the oaths by the non-Japanese clerks and translators, they ended with “so help you God”, which was a very puzzling thing. However, if a non-Japanese clerk or translator did not believe in God, he could replace the oath by affirmation, which did not contain such wording. In that case, they had a choice when swearing before the Tribunal (Cf. Rule 8 of Rules and Procedure of the International Military Tribunal for the Far East).

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between both parties. For the sake of caution and seriousness, the Tribunal specifically established such a position. Any document provided by the parties to the Tribunal, argued or not, could only be accepted and registered as a part of effective evidence after the Clerk announced and numbered it during the Trial. If the defense or the prosecution provided a document and asked the Tribunal to accept it as evidence without objection from the other party, the clerk would announce it, “No. X document from the prosecution is accepted and registered as Exhibit No. Y”. If any objection was raised, the Tribunal would ask both parties to debate over the acceptance of the document and the judges would then vote to decide its acceptance. If they intended not to debate the issue after raising an objection, the Tribunal also decided it by voting. On a few occasions when there were complexities and heated debates over acceptance, most decisions were finally reached in votes after the Tribunal announced a recess and held a judge meeting. On the other occasions, particularly when the matter of acceptance was simple and void of debating, the judges often resolved it by writing on notes (a simple way of expressing acceptance or refusal in letters or marks) and passed them to the President.38 The result of majority vote, whether during the judge meeting or in court, was often deemed as a ruling, and the President would announce, “we have decided to accept the exhibit” or “we have decided to refuse the exhibit”. The ruling, once announced, would be final and could not be overruled. If the exhibit was refused, the party that provided it (the prosecutor or defense counsel) would take it back, stop speaking, and recede from the chair designated for the person who spoke to the Tribunal. If the exhibit was accepted, the Clerk would announce, “The prosecution (defense) document, No. X, is accepted, and now registered as Exhibit No. Y.” For thousands of exhibits accepted by the Tribunal, each piece was announced by the Clerk. The announcement by the Clerk seemed procedural, but it also conveyed significance. Through his announcement and numbering, the evidence provided would be a legal and effective exhibit without any dispute. At the same time, the party that provided it would choose to read it in whole or in part, and every sentence and every word that was read would 38  As to the means of making a ruling by the judges, Sect. 2.3 of this chapter discusses the details.

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be reflected in the trial proceedings. As mentioned above, the Tokyo Tribunal did not evaluate the evidence through inner conviction, and the judges would make the final judgment based on the trial proceedings. To announce the exhibit after the Tribunal accepted it and to assign it a number was the sole responsibility of the Clerk. In this sense, he was seen as the “watchdog” of the Trial’s evidence. For about 5000 exhibits the Tribunal accepted, each of them was under the watch of the Clerk. An American named Dell served in that position. It was said that he was once an American local judge and later worked as a civilian officer for the GHQ before he was transferred to the Tribunal. However, the audience often paid little attention to him because his job was mechanical and he had no contact with any other people. Provost Marshal—Apart from the Marshal of the Court and the Clerk, the Provost Marshal was among the most important administrative personnel and could not leave the Tribunal for a moment.39 They were under the command of the Provost Marshal who played a double role, inside and outside the Tribunal. As to the inside role, the Provost Marshal was responsible for the entire Tribunal and its sessions. The Provost Marshal was completely responsible for guarding the building and the Tribunal and maintaining order when in session. To that end, he had to take any necessary measures to ensure the Tribunal’s safety and order, such as arranging personnel for the entrance and the in-out check. The marshals in the Tribunal were also under his complete command and order. The beginning of each session was a big occurrence for the Provost Marshal. Before it could start, he had to check everything that was cause for concern, from the corners of the trial hall, security check of the audience, arranging marshals within the Tribunal, and escorting the criminals for trial from prison to court. During the session, he was designated to oversee the criminals and audience to maintain order in the Tribunal. He did not have the ability to expel anyone who broke the rules or was held in contempt of court, but was to follow the commands of the President and Marshal of the Court. 39  Because the Tokyo Tribunal was essentially a military one, it did not turn over guarding and caretaking of prisoners to bailiffs as other courts did, but rather to a team of marshals appointed by the GHQ. The number of marshals that were stationed in the Tribunal and the prisons was 80 to 100, all of whom were tall and competent American soldiers selected by the GHQ.

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During the session, the Provost Marshal often stood in the middle of the entrance from which the prisoners could walk to the enclosed railings. He stood facing the bench, which meant that the prisoners were under his watch and could not escape. He could not leave unless an accident occurred. The above text described the details of the Provost Marshal’s responsibilities inside the Tribunal. However, and more importantly, he had to execute other functions outside the Tribunal (i.e. to oversee the criminals), which was in itself a difficult task. Although the defendants stood for trial every day before the Tokyo Tribunal, they were not detained in the Tribunal, but in the Sugamo Prison, quite a distance from the Tribunal. Sugamo Prison was the most prominent prison in Tokyo, housing up to 1000 prisoners. There were over 400 prisoners in it at any given time. When Japan was occupied, the GHQ expropriated it and used it as a ward for imprisoning Japanese war criminals (including Class-B, Class-C, and some Class-A criminals that were not yet prosecuted) as well as other criminals. Twenty of the criminals in the Sugamo Prison were tried by the Tokyo Tribunal and received special treatment. Their custody fell to the Provost Marshal, free from the prison’s general regulations and directions of its warden and staff. Although they were detained in Sugamo Prison, the management of their custody was independent. As was pointed out in the preceding paragraphs, the Provost Marshal’s overseeing was under the direction of the President, who was actually under the complete command of the GHQ and reported to them anything that happened. Because the Class-A defendants detained in Sugamo Prison were prominent figures before the war (some of whom were warlords, bureaucrats and plutocrats before the war), the Tribunal had assigned them to lenient treatment, far better than the ordinary prisoners received. For example, each Class-A defendant was given an independent room that was spacious and clean.40 They ate the same meals as the army (some40  When they were transferred to Sugamo Prison for custody, the Tokyo Tribunal had designated rooms for stable use. But their rooms would be changed every week after the Nuremburg Trial was concluded in the end of 1946. It was said such change was enlightened by Hermann Goring’s suicide by using the poison he hid in his ward. Goring was sentenced to death by hanging by the Nuremburg Tribunal. From then on, the marshals changed their rooms to prevent them from hiding or burying any drugs or tools that could help them com-

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times the Japanese holiday meals specially prepared for them), and the enjoyed the best medical care in Japan. They could chat during breaks, see family and friends every day at noon, and even gave speeches to the journalists. The generosity and leniency shown toward them was rare compared with other prisons. With the increasing exposure of the United States’ policy to apply asylum to Japanese war criminals with the attempt to restore Japanese militarism, the defendants were treated more leniently in prison. The Provost Marshal of the Tribunal is an American officer—Col. A.S. Kenworthy. He was a man of medium build in his 40s, revered and taciturn. Considering that he had served in the Philippines as the Provost Marshal of the military tribunal trying Japanese war criminal Tomoyuki Yamashita (nicknamed Tiger of Malaya), it was more appropriate for headquarters to appoint him as the Provost Marshal of the International Military Tribunal for the Far East. Kenworthy was in strict compliance with the headquarters’ instructions while overseeing these accused war criminals, which fully reflects the US policy toward Japan. At the beginning of the trial, his attitude toward the defendants and the measures taken were quite severe. However, it has gradually become clear over time that the United States was unprincipled partial to Japan. His attitude toward the defendants thus became more and more friendly, and the measures he took, more and more loose. Kenworthy was a double-dealer in the implementation of his duties. On the one hand, at the public trial in the court and in the daily routes from prison to the court when the defendants were taken in large cars under escort, his measures toward the defendants seemed to be very harsh as if they had been a group of infamous thieves. This was a show for the people of the Allies and Japan. In his report to the presiding judge and other judges, he always vividly explained how harsh the overseeing was, and how tough he was with the prisoners. But on the other hand, particularly in the Sugamo Prison, the situation was actually reversed. In the prison, he was not only amiable to the defendants, but also responsive. His care for the mit suicide in their own rooms. Apart from the room-changing method, the marshals often conducted a strict check of their clothes and daily articles, because the media reported, or rumored, that Goring killed himself by a type of cyanide poison that was hidden under a gold dental crown. With that lesson in mind, the marshal also did a thorough body check. They also checked their daily articles and any food sent by their family in the event that they hid any poison as Goring did. At that time, the marshals regarded the prevention of the criminal’s suicide as a priority.

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prime culprits and arch-criminals was painstaking and meticulous. It was no wonder that at the end of the public trial (February 1, 1948), the defendants gave him an about-three-meter-long “appreciation letter” with exquisite binding and their signatures. Kenworthy’s undue leniency toward the defendants and his double-­ dealing were not the result of his own perversity and ingenuity, but the reflection of increasingly intensified policy of the United States to rearm Japan and restore Japanese militarism. As a sophisticated American soldier, Kenworthy understood perfectly the intention of the United States and was a faithful performer. Above are mentioned the actualities about the administrative organization and personnel arrangements of the International Military Tribunal for the Far East, and the personalities and styles of certain important administrative staff of the Tribunal. Finally, we will talk about the tribunal’s financial and archival issues, as they are also within the scope of the Tribunal’s administrative matters. We shall first discuss the finances. The International Military Tribunal for the Far East had no independent budget or accounting. All expenses were finally incorporated into the accounts of the GHQ. However, that does not mean that the Tribunal had no separate account records regarding expenses, nor that it did not deal with money at all. The amount of money directly paid by the Tribunal was quite limited, and were mainly administrative expenses. The major expense of the Tribunal was either borne by the General Headquarters, the Allies, or the Japanese government. For example, the salaries of hundreds of Tribunal staff (from the presiding judge, judges, security guards, and assistants) should have been the largest expenditure of the Tribunal, but the Tribunal had no need to bear the costs and even no need to worry about it. The salaries of the presiding judge and judges, prosecutors from different countries and their secretaries, suites, and translators and so on were paid by their accrediting countries themselves. Salaries of the US assistant prosecutors and counsels (most were servicemen or civilians of the GHQ) were directly covered under the occupation army expense by the GHQ. The salaries of Japanese defense lawyers were financed by the Japanese government. The salaries of the administrative staff of the Tribunal (the chief registrar, the executive officers, registrars, stenographers, typists, photographers [of whom more than 90% were Americans appointed by the GHQ]) were directly drawn from the GHQ. American defense lawyers (either appointed by the GHQ

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or directly from the United States) were paid directly by the GHQ. As for the US Provost Marshal and the security staff safeguarding the Tribunal, they had originally served in the occupation army and were temporarily appointed to the Tribunal, their salaries were also taken from the GHQ. Japanese technicians (translators, printers, electricians, etc.), as well as Japanese workers (chefs, maids, cleaners, etc.) employed by the Tribunal were counted as personnel “expropriated” from the Japanese government by the GHQ, and they were paid by the Japanese government. As for the costs of the refurbishment, maintenance, and equipment of the Tribunal, those costs were paid by the GHQ. The Tribunal did not supply any funds. Given the facts mentioned above, the salaries of all Tribunal staff and the substantial infrastructure expenditures were borne by other organizations, and none was paid by the Tribunal. The Tribunal only paid for certain administrative expenses. It must be noted that those expenses did not cover the accommodations and board of judges from the various countries and their entourages, nor their cost of transportation and hotels during vacations or weekends. The GHQ paid for such first under the occupation fee item, and declared that these would be deducted in the future from the Japanese indemnity to the country which the judge belonged to.41 In the few items directly paid by the Tribunal, the witness fees and the consumption of printing paper are undoubtedly the largest two. During all the public trials, the Tribunal summoned about 500 witnesses to testify. Some of them were Japanese, some were from the Allies, some lived in Tokyo or were from a Japanese port city, and some were from distant overseas places. For those witnesses living in Tokyo or from a Japanese port city, the cost was quite low for the Tribunal. For those overseas witnesses, the Tribunal’s expenses were high because in addition to their return tickets for an airplane or steamer, the Tribunal also had to bear the costs of their accommodations and board. Additionally, the Tribunal had to pay every witness a dollar per day as their daily pocket money. Furthermore, overseas witnesses were not allowed to testify upon their arrival, but had to wait until the particular stage of trial they were needed in. They would then be summoned to testify. As a result, some witnesses stayed in Tokyo for a long time, and some witnesses went back for reasons such as career or work and then returned. Those types of incidents increased the Tribunal’s expenses. 41  Such statements as “deduction from Japanese indemnity” can be referred to in the third footnote under Item 4, Sect. 2.3 of this chapter.

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In addition to the expenses of the witnesses, the cost of printing paper was also prohibitive with much unnecessary waste. Each piece of evidence accepted by the Tribunal had many copies (photocopying, stereotype, or printing) for distribution to the judges and the other parties concerned, with daily records, memos, applications, and other documents being numerous in number which also needed to be copied by stereotype or by printing. As a result, printing (stereotype and photocopying) and typing became the busiest part of the Tribunal’s work, and the amount of paper used was staggering. According to the newspapers, the amount of paper used by the Tribunal for printing and typing weighed up to three to five tons a day. Such large paper consumption, coupled with the necessary printing ink, film, liquid, carbon paper, and so on, undoubtedly incurred a huge expenditure. Because the Japanese paper industry had been destroyed during the war, the quality of paper produced was not satisfactory. Therefore, the paper used by the Tribunal was mainly imported from foreign countries (United States and Sweden), which added to the paper expenses. In addition to the above-mentioned two main expenses (witness fees and printing paper), other expenses directly paid by the Tribunal, such as food and tea for the judges, the reception of guests, and purchase of vessels, tools, and stationery were very limited, and even negligible. From the above we learned that expenses directly covered by the Tribunal were limited and only accounted for a small portion of the total cost of the Tribunal. However, according to the newspapers, the Tribunal had spent US $7.5 million from the beginning to the end of trial, which was a shocking waste. Either directly paid by the International Military Tribunal for the Far East or paid by the GHQ, such expenses would finally be incorporated into an “occupation fee”, and the “occupation fee” was paid by the Japanese government to the United States. As for the total amount of the “occupation fee” and how it was spent, was a mystery because the Americans always regarded the GHQ as their own “housework,” the financial issues of the GHQ were never open. The “Peace Treaty with Japan” signed by the United States and 48 other countries in September 1951 in San Francisco stipulated that the signatories renounced all the compensation claims moving forward.42

42  See the “Treaty of San Francisco”, Paragraph 2 of Article 14. The full text of that illegal treaty is contained in the Collection of International Treaties (1950–1952), World Affairs Press, pp. 333–350.

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The “mess account” of United States in the occupation of Japan was attended to by none, not to mention the so-called deduction from the Japanese indemnity which these countries were entitled to. Finally we discuss the archives of the International Military Tribunal for the Far East and the management of those archives. Archives maintained by the International Military Tribunal for the Far East were quite extensive, and the Japanese often described it as “so many as to make the ox carrying them perspire and to fill a house to the rafters” and “as vast as a misty sea”. The source of the archives of the International Military Tribunal for the Far East consists of the following: (1) The original testimony documents (also known as “the authentic”) presented by both parties (prosecution and defense) and admitted by the Tribunal. Such original (authentic) documents, nearly five thousand volumes, were registered and maintained as archives for future reference. Photocopies, stereotype copies, or printed copies were distributed to the parties concerned. Some of those testimony documents were read completely by the presenting party at the public trial in the courtroom, and then included in court records. But many testimony documents, due to their length, were read partly by the presenting party at the public trial in the courtroom (of course, the more important and more relevant part), so the content recorded in the court records was part of them. For ­example, the famous Kido’s Diaries (one of the most important documents admitted by the Tribunal) had more than a dozen volumes, but only a small part of it was read out in the court. Any testimony documents, as long as they were formally admitted by the Tribunal, had full validity as testimony, and were maintained in the archives as evidence, whether the content was completely or partly read in the court. (2) The secret documents of the Japanese government seized by the GHQ in the early days of the occupation of Japan, such as the minutes of the Curia Regis, the cabinet meetings, and the wartime core cabinet meeting (“five-minister meeting”), and the decisions and tactical plans of the base camp, the secret instructions and statements of headquarters, and secret reports and telecommunications from the Ministry of Foreign Affairs. Those documents were “top confidential”, and had never been open in pre-war or wartime

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Japan. When the Japanese surrendered, the Japanese government had made every endeavor to hide them within several metal safes, but in the end the occupation army found them.43 Because those documents were of great value to the trial of the primary Japanese war criminals in the International Military Tribunal for the Far East, the GHQ handed over almost all of them to the Archives of the Tribunal (except for purely military secrets, such as Japanese wartime organizations of armies, production of military supplies, tactical plans, and the like). A large part of the evidence submitted by the prosecution and the defense to the Tribunal was taken from those archives. The archives on the third floor of the court building became arsenals for both parties, and the staff of both parties searched diligently for favorable materials within numerous documents cluttering up the shelves, it was just like panning for gold from sand. Even if it was odds and ends, as long as it was beneficial, they spared no effort in digging it out and submitting it to the Tribunal. As for whether the Tribunal admitted the documents or not was another matter. Despite all of that, the materials extracted as evidence from the Japanese archives were limited, accounting only for a tiny fraction of the 43  To erase all evidence, the Japanese government burned most of the archives before the surrender. Of course, some were blown up because aircrafts of the allied armies had been bombarding Tokyo day and night. More than 75% of the buildings (including buildings of government departments) in Tokyo and Yokohama were blown up or burned. However, the most confidential, important archives with highest historical value to the Japanese government had not been blown up or burned. The group of prime culprits and arch-criminals in the Japanese government had already buried them in several metal safes. The site where they put them was in the basement of an insurance company in Tokyo, which was blown up. They thought that the tall buildings of the company had collapsed, and the basement had been deeply buried by crumbling walls and ruined curbs. Furthermore, the neighborhood was in ruins, which made it hard to find them. However, it was reported that less than four months after the occupation of Japan, their “secret basement” were discovered by patrolling security from the Allies. Although it is believed that the discovery was accidental, the news described it vividly as a planned “adventure” activity. After the discovery of the “secret basement”, the GHQ excavated all the safes buried underground, and found each safe with a seal reading “no opening without cabinet resolution”. That meant that not only were the archives preserved in those safes were confidential files of great significance for the Japanese government, but that they also displayed that the concealment of the archives was completely a planned and systematic conspiracy collectively conducted by the highest Japanese authorities. Undoubtedly, at least some of the defendants in the International Military Tribunal for the Far East might have been involved in the conspiracy. Defendants such as Hideki Tō jō , Koichi Kido, Nagano, Shigenori Togo, and Kenji Doihara might have been at the core.

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total. Such Japanese archives were as good as a full inside portrayal of the major decisions and measures of the Japanese government in the political, military, economic, and diplomatic endeavors over decades (including the Mikado, the cabinet, the parliament, the base camp, the army headquarters, etc.). The evidence needed by the Tribunal was material about the Japanese expansion of its aggression, waging of invasive wars, and its brutality in violation of humanity and international practice in the war, in particular those directly related to the more than 20 defendants over the course of a decade (since the Huanggutun Incident in 1928 to Japanese surrender in 1945). There is no doubt that the latter was only a tiny part of the former. Hence, the substantial majority of such Japanese archives were not used by the Tribunal. Of course, for those materials not submitted to the Tribunal as evidence, the Tribunal could not regard them as evidence. However, for people studying Japanese modern history, particularly those interested in aggression history or foreign relations of the Japanese imperialism, such confidential archives of the Japanese government are invaluable. In addition to the aforementioned two types of materials, the Archives of the International Military Tribunal for the Far East had also received some materials found in the secret archives of Nazi Germany about the Japanese aggression conspiracy and the collusion between Germany and Japan, as well as some materials sent by certain Allies about Japanese aggression and the brutality of Japanese armies in various mentions in the material. Some of those materials had been used by both parties and ­submitted as evidence to the Tribunal, but most of them still remained in the archives, which certainly hold great value for those who study history. The aforesaid is an overview of the important archives of the International Military Tribunal for the Far East. As we have mentioned previously, the archives are not only significant for the trial of the International Military Tribunal for the Far East, but also of great value for the study about Japan. Soon after the conclusion of the trial, the GHQ took over all the documents and materials in the archives, whether they were the original documents admitted by the Tribunal, the confidential documents of the Japanese government, the confidential documents from Nazi Germany, or the testimonies provided by the Allies, and sent them to the US War Department in Washington. The archives have become the exclusive property of the United States, which the other Allies have no chance to encroach on. Even the photocopies or the printed copies had been wholly

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taken over by the United States without sharing with the other Allies. The Chinese government had tried to get a photocopy of “Kido’s Diaries”, but was refused by the American government after negotiations. In view of the significant testimonial and historical value of “Kido’s Diaries”, the GHQ had made more than 100 photocopies. However, China, as an ally which had the closest relationship with Japan and fought with Japan for the longest time, and was the main participant in the trial on the International Military Tribunal for the Far East, they did not receive a copy. That was the destiny of the Tokyo Tribunal’s extensive archives.

CHAPTER 3

Arrest and Prosecution of Japanese Major War Criminals

3.1   Four Arrest Warrants of Major War Criminals from the General Headquarters According to the resolution on the Moscow Conference on December 26, 1945, the Supreme Allied Commander was bestowed with the power to carry out and implement all the surrender clauses in the Japanese Instrument of Surrender, “to carry out the provisions of the Potsdam Declaration (note: that is articles of the Proclamation Defining Terms for Japanese Surrender on July 26, 1945) in good faith” was one of the important conditions for Japan’s surrender (see Article 1 and Article 6 of the Japanese Instrument of Surrender). Article 6 of the Potsdam Declaration stipulated that “There must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest”. Article 10 provided that “We do not intend that the Japanese shall be enslaved as a race or destroyed as [a] nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners”.1 In order to implement those two articles, the Supreme Commander for the Allied Powers at Tokyo (hereinafter referred to as GHQ) had adopted two measures during the early stage of Japanese occupation. First, to arrest more than a 100 major war criminals in batches, that was the “Class-A war criminals”, 1  As for the resolution on the Moscow Conference, see pp. 120–128 of the International Treaties Volume (1945–1947) (World Culture Publishing House). As for the Potsdam Declaration, see pp. 77–78. As for the Japanese Instrument of Surrender, see pp. 112–114.

© Shanghai Jiao Tong University Press 2018 M. Ju-ao, The Tokyo Trial and War Crimes in Asia, https://doi.org/10.1007/978-981-10-7404-2_3

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including those politicians, warlords, zaibatsu, diplomats, or propaganda advocates who should take major responsibility for the Japanese war of aggression; second, to purge almost 200,000 so-called Japanese militarists. Those Japanese who had senior positions in the Japanese government, Japanese Army, the fascist group, or large enterprises during the Japanese aggression were listed in “the Purge”.2 It was necessary for GHQ to take those two measures as it was not only the power conferred on it by international documents, but also its inalienable obligation to its allies to punish the war criminals and suppress militarists. It must be pointed out that during the early stages of the surrender of Japan and the Allies’ landing, the exercise of that power and the fulfillment of such obligations by the GHQ were rather severe and serious, which threw the Japanese reactionaries into great trepidation and anguish. It was evident that when the war was over, the Japanese aggression was still fresh in the memories of the people from the Allied countries. Even the American people can hardly forget the catastrophe of Pearl Harbor and the hardships of fighting against Japan. Therefore, there was a shared feeling of hatred among the Allies. Everyone had a strong demand for punishing the chief culprit of the Japanese war and eliminating Japanese militarism. At the same time, the US government had not yet clearly demonstrated its protective and supportive attitude toward the Japanese reactionary forces during that period, although some people in Washington and on Wall Street had long been conceiving Japan as a powerful helper of the United States in the Far East. For the reasons mentioned above, the GHQ had conducted timely and strict operations fairly quickly in arresting war criminals and purging militarists in the early stages of occupation. The issue of purging was not directly related to the trial of the International Tribunal for the Far East, so it was not illustrated in detail. 2  Purge means “remove” or “get rid of”. Those who are purged are not allowed to hold any public office until the purge has been lifted. They are not allowed to serve as an official or parliamentarian at any levels of government or higher positions of social organizations or business groups such as president, manager, director, chairman, secretary, or accountant. At the beginning of the occupation, more than 190,000 Japanese militarists had been purged in batches by the GHQ. Later, they were released in batches due to the United States policy to protect Japan’s reactionary forces. By the time of the signing of the San Francisco Peace Treaty in September 1952, most of those purged had resumed their citizenship. After the signing of the “peace treaty”, the Japanese government simply lifted the purge for all of those people.

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The arrest of the main war criminals is the focus here as the purpose of arresting them was undoubtedly for future trials, so that they could accept severe legal sanctions. In fact, they were chosen as the objects of adjudication shortly after the establishment of International Military Tribunal for the Far East. The arrest of major Japanese war criminals (also known as “Class-A war criminals”) was conducted four times between September 1945 and December 1945. The first war criminal arrest warrant was issued on September 11, 1945, by the GHQ. It was less than ten days from the time when Japan officially signed the surrender (September 2) and the US military began landing (September 3). A total of 39 warlords were listed on it with the notorious former Prime Minister Tō jō Hideki ranked as the first. That arrest warrant had two characteristics. First, it mostly targeted the Japanese government leaders who had launched the Pacific War and those senior officers who had committed atrocities in the Pacific War. Second, in addition to a number of Japanese war criminals, some foreign officials in cooperation with Japan who were involved in the aggression were also arrested. Those people had failed to flee to the motherland and still remained in Japan when the war was over. Due to the features mentioned above, the scope of the arrest of war criminals on one hand was relatively narrow as many important Japanese war criminals had not been included; on the other hand, it was relatively wide as there were more than a dozen foreign war criminals. Except for the Japanese Prime Minister Tō jō Hideki during the Pacific War, the first arrest warrant also named 27 Japanese as follows: Togo Shigenori (Minister of Foreign Affairs), Shimada Shigetaro (Minister of the Navy), Kaya Okinori (Minister of Finance of Japan), Kishi Nobusuke (Minister of Japan and Deputy of Minister of Munitions), Terajima Ken (head of the government railways, Vice Admiral), Iwamura Michiyo (Minister of Justice), Koizumi Chikahiko (Minister of Health, Labour, and Welfare), Hashida Kunihiko (Minister of Education),3 Ino Hiroya (Ministry of Agriculture and Commerce), Doihara Kenji (General, General in the Japanese Army Air Force, long engaged in espionage with China), Hashimoto Kingoro (a fascist official, forming the Sakurakai [Cherry Blossom Society] and the Great Japan Youth Party, later known as the 3

 Koizumi Chikahiko and Hashida Kunihiko committed suicide before being arrested.

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Great Japan Sincerity Association), Suzuki Teiichi (Chairman of the Cabinet Planning Board and Minister of State), Ueda Yoshitake (Vice Admiral), Homma Masaharu (Japanese Military Commander of the Philippines, lieutenant general in the Imperial Japanese Army [IJA]),4 Kuroda Shigenori (ibid.), Murata Shozo (Japanese ambassador to the Second Philippine Republic), Nagahama Akira (Commander in the Kempeitai [“Military Police Corps”] to the Philippines), Ohta Seiichi (person directly in charge of the Manila massacre, Lieutenant Colonel), as well as others. Twelve non-Japanese criminals were also arrested, including José P. Laurel, the president of the Second Philippine Republic; Jorge B. Vargas, Laurel’s ambassador to Japan; Benigno Aquino Sr., the Speaker of the National Assembly of Laurel’s regime; Heinrich Georg Stahmer, Germany’s ambassador to Japan; Dr. Thein Maung, Burman ambassador to Japan; Luang Vichitr Vadhakar, Thai Ambassador to Japan; two Australians; one Dutch; and one American working in the Japanese fascist government. Not all those non-Japanese who were under the first arrest can be regarded as “Class-A war criminals”, no matter what standard was taken, let alone “chief war criminals”. Therefore, they were all repatriated and handed over to their own countries after it was decided by the GHQ that the International Tribunal for the Far East was a special trial of Japanese war criminals. It was later learned that the fates of those people was varied. Some were tried for treason and were sentenced to death by their domestic courts, while others were declared free and even participated in domestic campaigns to try to return to the political arena. As for the 27 Japanese war criminals listed in the first arrest warrant, 25 Kempeitai were arrested by the GHQ marshals except Koizumi Chikahiko and Hashida Kunihiko who had committed suicide before the arrest. Some war criminals even voluntarily surrendered themselves.5 4  Homma Masaharu was soon extradited to the Philippines. He was on trial and sentenced to death with Japanese General Yamashita Tomoyuki with the nickname of “Manila Tiger” in the US Military Court in the Philippines. 5  The arrest procedure of GHQ was quite confusing for the first batch of war criminals. Some of the war criminals were arrested on the day following the arrest warrant, while another group of war criminals were arrested after several days after the arrest warrant was issued. There was no clear stipulation expressly provided for their voluntary surrender. But these issues had been clear since the time of the second arrest warrant. The deadline for voluntary surrender was 10 days. The military police of the GHQ would enforce it in the early morning of the 11th day if they did not report to the Sugamo Prison within 10 days from the notification of the arrest warrant.

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As to the arrest of the Japanese war criminals, Tō jō Hideki’s arrest was undoubtedly the most dramatic. His panic and suicide attempt at the time of his arrest had aroused public criticism around the world, and his ugliness of clinging to life not withstanding dishonor had been particularly attacked by the Japanese people. (Note: Since the declaration of unconditional surrender, the tendency of committing suicide prevailed in Japan at that time as some did not want to be “conquered people” while others in high positions did not want to be “prisoners”, such as three-term Prime Minister Konoe Fumimaro, the former Minister of the Army of Japan; General Anami and General Sugiyama, the former Commanders-in Chief of the Kwantung Army General Honjo; and so on. They committed “seppuku” [a ritual suicide by disembowelment] or took poison as husband and wife to demonstrate their integrity to die for their motherland. It was tragic and touching, their firm determination, although it was influenced by the fascist education of “Yamato-damashii” and “Bushido” over many years. However, Tō jō Hideki’s “suicide” was quite different.) Tō jō Hideki was one of the instigators of the Japanese invasion into China and took major responsibility for the Pacific War. He knew that he would have been handed over and subjected to severe legal sanctions after the surrender of Japan. Therefore, he locked himself in for ten days, entangled with the problem of life and death since the date of the landing of the Allied Forces. To cling to life? He was afraid of being in prison and of an inevitable death in the future. To commit suicide? He lacked the determination and courage. After hesitating for about ten days, Tō jō Hideki still lacked the determination to commit suicide on September 11th when the arrest warrant of 39 people, with Tō jō Hideki being ranked as the first, was issued and broadcast by the GHQ. He took a pistol to shoot his own leg, but only caused injury to the skin rather than the vital parts when the marshals of the GHQ began to encircle his home with the rumbling of the jeeps. Through that symbolic action, he was captured by the marshals. That is the truth of the so-called suicide farce of Tō jō Hideki, which aroused the mockery and ridicule of the world. The Japanese people strongly criticized him, saying it was a disgrace to the Japanese nation. As a general with military service for more than 40 years, Tō jō Hideki had not failed to kill enemies in the battle. Why was he incapable of committing suicide?6 6  In order to ease the Japanese people’s attack on Tojo Hideki and whitewash his gaffes, Shiohara Tokisaburo, the Minister of the Ministry of Communications and later the defense

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A comment from the press corps of Asahi Shimbun in the court can best represent the general perception of the Japanese people at the time. The suicide of Tō jō Hideki was considered a farce around the world. As the Minister of the Army of Japan, Tō jō Hideki issued ‘War Training’ encouraging that ‘men should not drag out an ignoble existence as prisoners of war’. However, he disclosed entirely his revolting manner when he was reluctant to commit suicide. Compared with the Minister of Army of Japan General Anami and the Sugiyamas, he was ridiculed even though he was already dead. In a conversation with an American journalist, Tō jō Hideki said that he had long been aware of his inevitable death, but he lacked the courage, so he felt panic during the arrest by the US marshals. Why was he as timid as a hare when he had been so reckless in the past? It thoroughly revealed the image of defeated Japan!7 As the Minister of the Navy during the Pacific War, Shigetaro Shimada was ranked as second in the first arrest warrant and his attitude was quite sincere and frank. Shimada published a statement with the press after being arrested with peace of mind. He said, Since incorporated into the reserve, I have been devoted to winning the victory to the final battle. But after the issue of the arrest warrant, I have pondered over my mistakes and tried to commit Seppuku to acknowledge my fault. However, considering the edict from the Emperor of Japan to fulfill our responsibility in the Potsdam Declaration, I linger on in the last days of my life. As was expected, I was listed as the war criminal. But I feel guilty to the Emperor and the nation.8

lawyer for Tojo Hideki in the International Court for the Far East, made the following explanation: “The reason why Tojo was ridiculed around the world was his failure to obtain prior notice and there was insufficient time to consider it. After the defeat, there were two different attitudes of Tojo. In the first place, if there was a chance to speak freely, he would be eager to write a book telling the truth of the war. Meanwhile, he was in deep fear of the foreign arrest so he always took the pistol with him. He had asked the doctor to make a circle in ink around his heart. He would redraw it after taking a bath. Tojo not only placed the saber beside him all the day but also filled his favorite tobacco pipe with potassium cyanide just in case. He had not been informed until he was arrested on 11th, so he had thought about other possibilities. Only the sound of the approaching jeep had reminded him of the formal arrest. Then he first took a bath, changed the new uniforms, went to the study room and shoot himself to the ink circle. Since he was shot down still alive, he would like to make everything public.” His explanation was full of flaws, trying to hide something, so it failed to persuade the Japanese people to forgive Tojo. 7  See p. 12, 1st issue of “Tokyo Referee” (written by Journalist Team of Asahi Shimbun in Tribunal). 8  Ibid. at pp. 13–14.

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Shimada’s words represent the general mood of most Japanese Class-A war criminals arrested at that time. Among the 39 war criminals arrested, except for Tō jō and the early suicides of Koizumi and Hashida, the remaining 36 people were all arrested tamely or voluntarily surrendered themselves. For the time being, they had been taken to the Yokohama Prison and the Omori Prison, and later to the Sugamo Prison.9 Of the 36 prisoners, 12 non-Japanese prisoners were released and repatriated by the GHQ. Homma Masaharu was extradited and sentenced to death with Yamashita Tomoyuki in the US Military Court in the Philippines. Therefore, only 23 Japanese criminals including, Tō jō Hideki, were in long-term detention in the Sugamo Prison. The second arrest warrant was issued on November 19, 1945, by the GHQ.  It was over two months after the first. A total of 11 important Japanese war criminals were listed as follows (the biography in parentheses was added by the Central Liaison Office): Araki Sadao (General, danshaku [baron], Minister of the Army of Japan, Minister of Education, extreme Japanese militarist) Honjo Shigeru (General, Baron, Councilor of the Privy Council of Japan, responsible for staging the Mukden Incident without authorization from the Japanese government circles when served as commanding officer of the Kwantung Army) Kanokogi Kazunobu (former President of the Japanese Journalism Patriotic Association [Dainippon genron hokokukai], participated in

9  The first arrest was not only confusing in its procedure and deadline but the place of detention had also been relocated. Therefore, most of the war criminals listed in the arrest warrant were panic-stricken and hesitant, but some of them voluntarily surrendered themselves to the prison. On the morning of September 14th, Iwamura Michiyothe, in the afternoon Kaya Okinori, Ino Hiroya, Suzuki Takagi, and Murata Shozo; Hashimoto Kingoro, Ueda Yoshitake on the morning of September 15th, Homma Masaharu and Kuroda Shigenori in the afternoon; Terajima Ken on the 16th; Kishi Nobusuke on the 17th; Doihara Kenji on 23rd; Togo Shigenori on 30th (his surrender was a few days late as he was allowed to stay home for treatment due to his illness). After the first arrest, the following arrest warrants were clearly stipulated that the voluntary surrender was limited to ten days and the place was the Sugamo Prison, which was the fixed place for the detention of Japanese war criminals at all levels.

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secret a society for years, advocating militarism; comrade of the late Mitsuru Toyama [a right-wing political leader in Japan]) Koiso Kuniaki (general, 41st Prime Minister of Japan, initiator of the Southern Expansion Doctrine [Nanshin-ron] and the Northern Expansion Doctrine [Hokushin-ron]) Kuhara Fusanosuke (former Secretary-General of the Rikken Seiyukai [Constitutional Association of Political Friendship], intimate friend of the late Prime Minister Giichi Tanaka and General Araki Sadao, once conspiring to stage the February 26 Incident [Niniroku Jiken]) Kuzu Yoshihisa (leader of the former fascist group Black Dragon Society [Kokuryu-Kai] and trusted fellow of late Mitsuru Toyama) Matsuoka Yosuke (former foreign minister. As a major advocate of a Japanese alliance with Nazi Germany and Fascist Italy in the position of Minister of Foreign Affairs, he won the favor of the War Ministry and militaristic groups for he had long been anti-American) Matsui Iwane (General. He was responsible for the Nanking Massacre, USS Panay incident, and firing on British gunboat HMS Ladybird as the Commander of the expeditionary force sent to China. Later, he served as President of the Imperial Rule Assistance Association) Masaki Jinzaburo (General, a staff officer in the Inspectorate General of Military Training, propagating young soldiers to launch a revolutionary movement to usurp) Minami Jirō (General, Minister of Army of Japan in the Mukden Incident, and once headed as Governor-General of Korea and President of the Political Association of Great Japan [Dai Nippon Seijikai], a fascist group in Japan) Shiratori Toshio (former Ambassador of Japan to Italy, one of the most stubborn Japanese fascist militarists) Those 11 arrested Japanese war criminals can be called “Class-A war criminals” or “major war criminals” because of their high status and the responsibility they should take. This shows that the arrest list was more prudently considered, not as disorderly as the first list, which was mixed with a lot of non-Japanese as well as someone who cannot be classified as a “Class-A war criminal”. Except for Shigeru Honjo who had committed suicide and Matsuoka Yosuke who was seriously ill, the rest of the 11 war criminals voluntarily surrendered themselves, carrying their luggage to the prison within 10 days after the arrest warrant was issued.

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It is worth mentioning the suicide of Shigeru Honjo here. General Honjo was one of the leaders of the Japanese fascists and one of the active promoters of Japanese aggression. In 1931, he was the Commander of the Japanese Kwantung Army, so he has always been considered as the person with the highest position directly in charge of the “The Mukden Incident”. After the surrender of Japan, Shigeru Honjo had been aware of the inevitability of standing trial as a war criminal. He was upset about the events of Marshal Sugiyama (then the Minister of Army) and his wife having committed suicide by taking poison before they were listed as war criminals while Tō jō was severely criticized due to his attempted suicide. So, he took his own life after hearing the news of his arrest warrant. It was at 10: 30 a.m. on November 20th in the director’s office in the Aoyama Gakuin Army University. His suicide was considered a very heroic move in the eyes of the Japanese. He left two prepared suicide notes with the title of “Sincerity”.10 Matsuoka Yosuke was another prominent war criminal in that batch. As a Japanese person who grew up in the United States, he was fluent in English. He served as the Minister of Foreign Affairs, the chief representative of Japan in the League of Nations, the President of the South Manchurian Railway. He won the favor of the fascist army by advocating the withdrawal of the League of Nations and the conclusion of the Axis military alliance among Germany, Japan, and Italy. During the Pacific War, he withdrew from the political arena because of lung disease. He had been sick and living in the Kitaazumi District of Nagano Prefecture from the time of the surrender of Japan to the time he was named in the arrest. After the release of the arrest warrant on November 19th, Matsuoka, with his head in his blanket, made the following remarks to journalists on November 20th: Although I was ordered to go to the Sugamo Prison, I was unable to go there since I had been suffering from systemic sclerosis. At the age of 66, I could do nothing. It was to promote peace when we forged the alliance of three countries, so after the establishment of the Soviet–Japanese Neutrality Pact, I proposed to go to the United States and negotiate on the Pacific Agreement. I had settled down with Prime Minister Fumimaro Konoe. Unfortunately, the cabinet was soon disintegrated, and then we 10  In the course of the trial, Honjo Shigeru’s suicide note was read by his son qualified as a witness in the Far East court. It aimed at reducing the crimes of Japanese Emperor and other war criminals by taking all the responsibility of “The Mukden Incident” and continuing to encroach on the northeast of China by himself alone.

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lost that good opportunity. We had not expected to declare war with the United States. We were doomed to defeat. Recently I did not even have the mood to enjoy my favorite Haiku. Matsuoka’s remarks were undoubtedly an excuse for his crime, but he also expressed the great sadness he felt in his heart. He acted like two different persons considering his heroic spirit and extremely arrogant manner when he roared in the League of Nations and enthusiastically hugged and kissed Stalin in Moscow.11 Matsuoka, although seriously ill, was arrested on schedule by the GHQ and was treated in prison for his ailment. In May of the following year, he was listed as one of the 28 major Japanese war criminals on trial in the International Tribunal for the Far East. However, he died in prison less than four months after he first stood being accused before the Tribunal. His name was then removed from the list of defendants. The third arrest warrant was issued on December 2, 1945, by the GHQ, only 13 days after the second arrest warrant. Fifty-nine war criminals were named in it, the vast majority of which were “celebrities” who had been oppressing the Japanese people for a long time. However, they should have been included on the list of “Class-A war criminals” given their severe war crimes. Among the arrested war criminals there were two former Prime Ministers (Hirota Koki and Hiranuma Kiichiro), one Japanese veteran of the press (Tokutomi Iichiro at the age of 83), and a Japanese Prince (Nashimoto Morimasa at the age of 72). The list of names on the third arrest warrant included 59 war criminals, and they were as follows (the titles of the criminals in the brackets were added by the Central Liaison Office): Aikawa Yoshisuke (representative of House of Peers, former chairman of Manchurian Industrial Development Company) 11  Matsuoka Yosuke was one of the most arrogant adventurers of the Japanese politicians. Born in Oregon, the United States, he was once a houseboy there, so he was often called “Oregon houseboy” by the Western newspapers. After returning to Japan, he gradually ascended to the Japanese political arena because he spoke fluent English, and was good at kissing up to the warlord giants and getting to know the young soldiers. When Japan withdrew from the League of Nations in 1933, he was the chief representative of Japan. At the League of Nations, he roared and tried to discredit China, saying that “China is not a country, but only a geographical term”. In April 1841, Matsuoka returned to Japan after signing the Soviet–Japanese Neutrality Pact with the Soviet Union. Stalin bid him farewell at the Moscow station. After hugging and kissing each other, he said to Stalin: “If you violate this pact, I must behead you”, putting his hand to Stalin’s neck as if to cut. His arrogance was evident.

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Amau Eiji (successively held the posts of the Vice Minister of Foreign Affairs and President of the Intelligence Bureau) Aoki Kazuo (successively held the posts of the Chairman of the Cabinet Planning Board, Minister of Greater East Asia) Arima Yoriyasu (successively held the posts of President of Asia Promotion Federation and Chief Secretary of the Imperial Rule Assistance Association) Fujiwara Ginjiro (successively held the posts of Minister of Commerce, Minister of Japan) Furuno Inosuke (President of the Domei News Agency) Goko Kiyoshi (Chairman of Mitsubishi Heavy Industries, Ltd.) Goto Fumio (successively held the posts of the Minister of Agriculture and Commerce, Minister of Home Affairs, Minister of Japan, and Chairman of the Youth League of the Imperial Rule Assistance Association) Hata Hikosaburo (Lieutenant General, successively held the posts of the Vice Chief of the Army General Staff, President of the Army War College, and the Chief of Staff of the Kwantung Army) Hata Shunroku (Field Marshal, successively held the posts of the Commander of the expeditionary force sent to China and the Minister of the Army of Japan) Hiranuma Kiichiro (President of the Privy Council of Japan, successively held the posts of the Prime Minister of Japan and the Minister of Japan) Hirota Koki (successively held the posts of the Minister for Foreign Affairs and the Prime Minister of Japan) Honda Kumataro (Diplomat, former Ambassador to the Reorganized National Government of the Republic of China) Hoshino Naoki (successively held the posts of the Chief Cabinet Secretary, Minister of Japan, once closely connected with Manchukuo) Ida Bannon (representative of the House of Peers and Chief Secretary of the Imperial Rule Assistance Association) Ikeda Shigeaki (successively held the posts of the Governor of the Bank of Japan, Minister of Finance of Japan, counselor of the Privy Council of Japan, and President of Mitsui Zaibatsu) Ikesaki Tadataka (Member of the House of Representatives, Councilor of the Ministry of Education, Science and Culture, authoring several works about the Far East) Ishida Otogoro (Major General, former Commander of the Kempeitai) Ishihara Koichiro (President of Ishihara Sangyo Kaisha, Ltd.)

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Kamisago Shoshichi (Major General, former Commander of the Kempeitai in the Taiwan Army of Japan) Kawabe Masakazu (General, Commanding Officer of the Japanese Northern China Area Army during the Second Sino-Japanese War, later served as the Commander of the Expeditionary Army Group in Burma) Kikuchi Takeo (Lieutenant General, well known for refuting the “emperor organ theory”) Kinoshita Eiichi (Major General, Captain of Kempeitai in the Eastern Military Area) Kobayashi Junichiro (Colonel, General Director of the Imperial Rule Assistance Association) Kobayashi Seizo (Full Admiral, successively held the posts of the Deputy Minister of Navy, the Commander of the Combined Fleet of the Imperial Japanese Navy, Governor-General of Taiwan, President of the Imperial Rule Assistance Association, and Minister in Koiso Kuniaki’s cabinet) Kodama Yoshio (engaged in wartime espionage in China, writing Sugamo Diary [a chronicle of his experience in prison] and I Was Defeated [an autobiographical work]) Matsuzaka Hiromasa (former Minister of Justice and chief procurator) Mizuno Rentaro (former Minister of Justice, successively held the posts of the Councilor of the Imperial Rule Assistance Association and President to the Asia Promotion Federation, participating in activities organized by other political groups) Mutaguchi Renya (retired Lieutenant General, fighting actively in Burma) Nagatomo Tsugio (Major General, Commander of the IJA 1st Infantry Regiment in China) Nakajima Chikuhei (Founder of Nakajima Aircraft Company, successively held the posts of the Minister of Commerce, Railway Minister, Cabinet Minister and Minister of Munitions in the cabinet of Higashikuni) Nakamura Aketo (Lieutenant General, successively held the posts of the Commander of the Kempeitai and the General Office in Thailand) Prince Nashimoto Morimasa (Marshal-General, the Supreme War Council and the chief priest of the shrine) Nishio Toshizo (General, the Commander of the expeditionary force sent to China and took up the governorship of the Tokyo Metropolis) Nomi Toshiro (Major General, former Commander of the Kempeitai in Taiwan)

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Okabe Nagakage (Representative of House of Peers, successively held the posts of the General Secretary, Parliamentary Vice Minister of the Ministry of War of Japan and Minister of Education, Science and Culture in Tō jō ’s cabinet) Okawa Shumei (Professor at Hosei University, publishing various works on national movement in the Far East, such as Some Issues in R-­emerging Asia, a fanatic follower for Pan-Asianism) Okura Kunihiko (founder of the Okura Institute for the Study of Spiritual Culture, successively held the posts of the President of Toyo University and the Tung Wen College) Ono Hiroichi (Major General, came from Kempeitai, Former Commander of the 11th Army Division) Ota Kozo (Professor at Hosei University, successively held the posts of the Minister of Education, Science and Culture and the Imperial Rule Assistance Association, General Secretary of the Imperial Rule Assistance Association) Ota Masataka (Head of the Yomiuri Shimbun, Parliamentary Vice Minister of the Ministry of the Treasury and Chief Secretary of the Imperial Rule Assistance Association) Sakurai Hyougoro (former Secretary-General of the Constitutional Democratic Party and Chief Counselor of the Burma Government) Sasakawa Ryoichi (President of the Patriotic People’s Party [PPP], ultra-nationalist) Sato Kenryo (Lieutenant General, successively held the posts of the Chief of the Military Affairs Bureau of the War Ministry and Director of Imperial Conference) Shimomura Hiroshi (Vice President of the Asahi Shimbun Company and the President of the Intelligence Bureau) Shinto Kazuma (President of the Black Ocean Society) Shiono Suehiko (former Chief Procurator and the Minister of Justice) Shioden Nobutaka (Lieutenant General, President of the Anti-Semitism Association in Japan) Shoriki Matsutaro (President of the Yomiuri Shimbun Company) Tada Hayao (General, successively held the posts of the Vice Chief of the Army General Staff and the Commanding Officer of the Japanese Northern China Area Army) Takahashi Sankichi (Full Admiral, successively held the posts of the Commander of the Combined Fleet of the Imperial Japanese Navy,

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member of the War Council and the Imperial Rule Assistance Association) Toyoda Soemu (Full Admiral, successively held the posts of the Commander of the Combined Fleet of the Imperial Japanese Navy and Chief of the Imperial Japanese Navy General Staff) Tsuda Shingo (former President of Kanebo, Ltd. and former counselor of the Ministry of the Treasury) Ushiroku Jun (General, successively held the posts of the Vice Chief of the Army General Staff, member of the War Council, had been long active in Annan District) Yokoyama Yui (this criminal has cut a striking figure in the wartime. Japanese and foreigners, however, have all harbored suspicions against him) From the 59 people listed above, it was clear that the scope of the arrest of the war criminals was quite extensive, including not only military personnel, politicians, diplomats, but also entrepreneurs, plutocrats, publishers, critics, and royal aristocrats that most people think are inviolable. The release of the list had stirred up panic and fear among the upper class of Japan. Those prominent figures who had always been oppressed and bullied people were deterred by the situation as most of them were related to the Japanese war of aggression and suspected of war crimes. They were in fear that the burst of menacing arrests would be greater in the future and they would be arrested one day. But facts later proved that their fear was unnecessary. As the United States gradually showed a defensive attitude toward the reactionary forces of Japan, the arrest of war ­criminals was gradually mitigated rather than becoming intensified. We would see the arrest of Japanese war criminals halted after the issuance of the fourth arrest warrant and more and more war criminals would be protected and released. As those in the prior batch, the majority of the 59 people listed in the arrest warrant voluntarily surrendered themselves to the Sugamo Prison within ten days after the arrest warrant had been issued. Before and after their surrender, some also spoke to foreign journalists, expressing their feelings or finding excuses for their crimes. For example, the former Minister of the Army Marshal Hata Shunroku said to the foreign journalists, “What happened today is in my expectation. I am deeply aware of the responsibility of the war, so there is no room to defend myself by sophistry.” Senior Admiral Takahashi Sankichi also said, “What’s done is done. I’d better voluntarily surrender and accept the punishment.” But

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the former Prime Minister Hiranuma Kiichiro told foreign journalists, “People in the world misunderstood me as the Japanese fascist mentor, but they do not know that I am actually an anti-fascist proponent.” Shoriki Matsutaro, President of the Yomiuri Shimbun Company, said, “It might be a mistake that I was arrested as a war criminal”. Tokutomi Iichiro (or Tokutomi Soho), 83, one of the venerated press also voluntarily surrendered. When the arrest warrant was released, he was recuperating at Izusan Horai. He wrote a short Chinese poem to express his feelings when he was sent to the prison, which was widely read by the Japanese. The poem reads: “For whom I shed blood and tears; my royal heart was broken in the old years; vicissitudes of life change; nothing has left at the age of 83.” In the third batch of Class-A war criminals on the arrest list, another person also made a stir within Japanese society, Kodama Yoshio. He was in charge of the notorious espionage agency (Kodama Kikan) when Shanghai was occupied by Japan. As an “inexperienced youth”, he can hardly be classified as a “Class-A war criminal”, given his position and age. But he was listed as one of the major Japanese war criminals because of the serious crimes he had committed. On the day of the release of the third arrest warrant (December 2nd), his appalling story of making money by corruption was widely reported by Japanese newspapers. It was said that Kodama Yoshio had blackmailed the Chinese for over 300,000 yuan when he presided over Kodama Kikan in Shanghai. 300,000 yuan was not a huge number compared with Japanese invasion tycoons during the Japanese aggression. However, it had aroused the special attention of Japanese society as the report of the case of corruption was published on the same day that his arrest warrant was issued.12 Kodama was not included in the first batch of war criminals standing trial in the International Tribunal for the Far East. On the contrary, he spent less than three years in the Sugamo Prison and was released by the GHQ without authorization. His once sensational “corruption case” was totally forgotten. The fourth arrest warrant of Class-A war criminals was issued on December 6, 1945, by the GHQ, only three days after the third warrant and was the last arrest of the major war criminals in Japan. Only nine people were listed, of which there were two particularly important figures 12  See pp.  23–25, 1st issue of “Tokyo Referee” (written by Journalist Team of Asahi Shimbun in Tribunal).

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from the Japanese political arena (Konoe and Kido). The list is as follows: Konoe Fumimaro (Duke, Prime Minister of Japan for three times, the Second Sino-Japanese War) Kido Koichi (Marquess, Lord Keeper of the Privy Seal, successively held the posts of the Minister of Education, Science and Culture, Ministers of Home Affairs, Minister of Health, Labour and Welfare, chief confidential advisor to the Japanese Emperor, President of the Council of Elder Statesmen) Sakai Tadamasa (Count, Vice President of House of Peers) Oshima Hiroshi (Lieutenant General, Japanese Ambassador to Germany) Okochi Masatoshi (President of the Institute of Physical and Chemical Research) Ogata Taketora (successively held the posts of the Minister of Japan and President of the Intelligence Bureau) Odachi Shigeo (Representative of the House of Peers, was once Minister of Home Affairs) Godo Takuo (successively held the posts of the Minister of Commerce and Head of the government railways) Suma Yakichiro (successively held the posts of the Consul General in Nanjing and Japanese Ambassador to Spain) Among those nine war criminals, the ones that were the most shocking were Konoe Fumimaro and Kido Koichi. Kido served as the head of the royal affairs (Home Minister) and was the closest advisor to the Emperor; he was the hub of the cabinet and the royal family, a pivotal figure in Japanese politics for more than a decade. He had a close relationship with the upper class of Japanese politicians, particularly with Konoe Fumimaro. Among the criminals named in the last warrant, the arrest of Konoe Fumimaro and his subsequent suicide was undoubtedly an event that triggered the most social shock in Japan. It is necessary to describe it here. Konoe Fumimaro was an influential man in Japanese politics. He was part of the aristocracy and he often proclaimed himself as “the beloved of the fate”, meaning that he was a lucky person, or “God’s favored one” in Chinese sayings. He climbed to the top of the Japanese government as he had always been favored and cultivated by Saionji Kinmochi, the only surviving senior statesman; and served three times as Prime Minister of Japan from the launching of a comprehensive war of aggression against China to

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the beginning of the Pacific War (the four years from the Marco Polo Bridge Incident in 1937 to the Pearl Harbor Incident in 1941). Konoe should have taken the major responsibility for the expansion and persistence of Japan’s full-scale war of aggression against China. During his term as the Prime Minister, he repeatedly shouted “never stop the war until China ‘bows the knees and sues for peace’”. Contrary to the expectation of Saionji, Konoe did not stop or slightly constrain the arrogant ambition of those aggressive warlords, but he blindly echoed their views and added fuel to the fire to win their favor and support. However, Konoe was not a warlord. Although he exerted every effort in the Japanese war of aggression against China, he still could not win the complete trust of the warlords, and he did not have enough courage to put Japan at greater risk. He resigned on the eve of the Japanese attack on Pearl Harbor and the launch of the Pacific War and was replaced by Tō jō Hideki, a pure warlord chieftain. As he did not directly participate in the launch of the Pacific War, Konoe believed that the United States might not have a bad feeling about him, and he sought to re-board the political arena as an aristocrat when Japan was defeated. He served as Home Minister without Portfolio in the surrender cabinet headed by Prince Naruhiko Higashikuni as the Prime Minister (which lasted less than two months). The cabinet resigned on October 5, 1945 (only one month from the surrender of Japan). It was replaced by Shidehara Kijuro, who had lived in seclusion since the “The Mukden Incident”. In Shidehara’s cabinet, Konoe was appointed as Lord Keeper of the Privy Seal of Japan. During that period, he constantly visited his mentor Sasaki Soichi, who was an emeritus professor at the Kyoto Imperial University as well as the Japanese authority on the constitution. It seemed that he intended to participate in amending constitutional law. Later, the public attacks on aristocrats were rampant in Japan and other countries, so Konoe resigned from on October 24, although he did not restrain his political ambitions. On the day of his resignation, he rushed to visit Home Minister Matsumoto, the Chairman of the Committee on Constitutional Issues organized by the Japanese Government, to explain his views on the state system of Japan, hoping to make his contributions to constitutional issues. At the same time, it was rumored that Konoe would organize the new party in opposition to work actively in the future general election. However, the development of those things did not depend on Konoe’s subjective desire and his shameless activities and arrogant ambitions had

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aroused great dissatisfaction among public opinion of the Allied Powers. He was severely attacked in an editorial by The New York Times, saying that he was not an appropriate person to amend the Japanese constitution and there would be no objection from the world if he were listed as a war criminal. The GHQ, charged by the United States, had always paid little attention to the opinion of the Allied Powers, but it dared not brush off the public opinion of the United States, particularly the newspapers with as high a status as The New York Times. Due to the increasingly fierce attack on Konoe by The New York Times and other sources, the GHQ believed that they could not keep silent without any clarification regarding the issue of Konoe. Its spokesman therefore told journalists on November 1st that Konoe served only as the contact of headquarters with the royal family. As for the amendment of the Japanese constitution, they had no intention of involving Konoe. That statement from the GHQ was nothing but a head-on blow to Konoe, which was a hard hit to his fantasy. What followed was the 89th Provisional Parliament at the end of November. During that session, Saito Takao first questioned and repeatedly pointed to Konoe, claiming that he was the chief culprit of the comprehensive war of aggression against China, and that he should take direct responsibility as to the origin of World War II and the result of the Japanese defeat. That was the second blow to Konoe. Although the provisional Parliament did not make any resolution regarding him, Konoe, with his constant ambition, was not only disillusioned, but also embattled and shamed. Things then occurred quickly. On the evening of December 6th, the arrest warrant was announced by the GHQ via radio when Konoe was sitting in a gorgeous villa with other visitors in Karuizawa. It was one of the most deathly blows to Konoe, ending his political life and fantasies. As a rule of the arrest warrant, the time limit was ten days for voluntary surrender to the Sugamo Prison. They would be arrested by the marshals if they did not surrender on December 15th. At that time, Konoe spent five days in the villa in Karuizawa, refusing all visits. He wandered around the room for with a violent and painful mental struggle. He had a dilemma of whether to “muddle along” or “commit suicide”. He had difficulty with making a decision between committing tragic suicide (i.e. Sugiyama, Shigeru) or living with shame (i.e. as did Tō jō , Shigetaro).

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On December 11th, Konoe returned from the villa in Karuizawa to his duke’s residence in Tokyo. He struggled with the issue of life and death although he pretended to be calm by often chatting with his wife Chiyoko, his brother Konoe Hidemaro (a famous Japanese musician), his married sister, and his children. That lasted for five days. It was the evening of December 15th and the deadline for voluntary surrender was approaching, and the GHQ was about to execute the arrest warrant. On that night, Konoe still chatted with his wife, his siblings, and his children about future arrangements until 1:00 a.m., but he did not show any intention of committing suicide. After his family left, he summoned his son, Konoe Michitaka, to discuss the war of aggression against China and confessed his own responsibility for the Chinese Incident. After Michitaka left and he was alone, Konoe changed into white clothing in a 12-tatami-mat room and committed suicide by drinking poison. When he was found at the dawn on December 16th by his wife, his body was stiff and his face pale. The light was on and one or two drops of poison residue were found in the brown vials in the brazier. Shortly after the death of Konoe, the prison vans of the marshals from the GHQ and the jeeps of journalists from various countries who hurried to cover the arrest flocked to his residence. They however left disappointedly as the subject of arrest had died. Among the war criminals named in the fourth arrest warrant, most of them voluntarily surrendered themselves to the Sugamo Prison, quietly and within the specified time limit except for Konoe, who had committed suicide a few hours before the arrest. After the issuance of the fourth arrest warrant, the GHQ stopped issuing any arrest warrants for Japanese war criminals. Contrary to the expectation of the Japanese, the arrest of war criminals was not expanded, but was completely stopped. In total, the number of war criminals listed in the four arrest warrants was 118 (39 in the first, 11 in the second, 59 in the third, and 9 in the fourth). However, there were only approximately 100  in prison by the beginning of 1946. The non-Japanese war criminals had been returned to their countries of origin. Some Japanese war criminals (i.e. Honjo Shigeru, Konoe Fumimaro, Hashida Kunihiko, and Koizumi Chikahiko) had committed suicide before the arrest. Some have been extradited abroad to stand trial (Homma Masaharu). For special reasons, some war criminals were released by the GHQ shortly after their arrest with the excuse of

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insufficient evidence (i.e. Prince Nashimoto Morimasa, Goko Kiyoshi, and Ueda Yoshitake).13 From a strict legal point of view, there were definitely more than 100 “major war criminals” or “Class-A war criminals” from the Japanese upper society during the wartime, but those arrested were definitely “genuine” major war criminals or Class-A war criminals as they had long pushed Japan into the war of aggression through their unique status and influence. Because not all the major Japanese war criminals were included, their arrest and trial could only be considered as a “symbolic” punishment of Class-A war criminals. Since the end of the war and after the arrest of war criminals at the end of 1945, the urgent tasks facing the GHQ of the Allied Forces were first, organizing an international court of the Japanese Class-A war criminals; second, investigating the arrested Class-A war criminals to choose the first to be prosecuted in the court.

3.2   Preparatory Investigation and Prosecution of the War Criminals by the International Prosecution Section The International Prosecution Section (IPS) was an important part of Supreme Commander of the Allied Powers (GHQ), which had the primary responsibility for dealing with Japanese Class-A war criminals. However, it was not easy or simple to fulfill that responsibility, but rather a very arduous job. In the early days of the occupation of Japan, the IPS was busy preparing a list of Class-A war criminals and arrested them in batches. Under certain circumstances, it had to decide whether or not some of the war criminals who had been arrested could be released in advance or returned to their country of origin. For example, the repatriation of all non-Japanese war criminals, the non-prosecution and release of Nashimoto Morimasa, Goko 13  Ueda Yoshitake was one of the first 39 war criminals arrested, and he was the first person released from the Sugamo Prison. Goko Kiyoshi, a magnate from Mitsubishi, was released on April 13, 1946. His release indicated that the GHQ would not investigate the Japanese monopoly capitalists. Those giant conglomerates, arms dealers, and entrepreneurs were released shortly after, as expected. Prosecutor General Keenan also made a statement saying that the Japanese capitalists were persecuted by the military forces to participate in the war of aggression, not voluntarily.

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Kiyoshi, Ueda Yoshitake, and others and extradition of Homma Masaharu to the Philippines for trial were decided by the IPS. The Director of the IPS was Keenan, an American politician. We have already discussed Keenan’s domineering character and arbitrary style (see Chap.1, Footnote 1). However, Keenan had played a large role in the prosecution of Japanese major war criminals and the initial organization of international tribunals. He had exerted much influence on the trial organization in Tokyo. Because Keenan was the legal adviser and also the trusted fellow of Supreme Commander MacArthur, he was in charge of drafting the Charter of the International Military Tribunal for the Far East, choosing the court location and building the court at the end of 1945 when the arrest of the war criminals came to a halt. The purpose of arresting war criminals was undoubtedly to deliver them to court trials so that they could undergo so-called severe legal sanctions in the Potsdam Proclamation. Keenan had of course received assistance from a large number of staff in the implementation of that task, but he was the person with the greatest responsibility. On January 19, 1946, the GHQ issued the Charter of the International Military Tribunal for the Far East, appointed the judges of the Tribunal, and appointed Keenan as the Chief Procurator of the Tribunal. Keenan obtained the title of Chief Prosecutor of the International Tribunal for the Far East in addition to the two posts he already held, Legal Adviser of the GHQ and the Director of the International Prosecution Section. It was clear that appointment of Keenan as the Chief Prosecutor was intended to make the IPS which he presided over as the prosecuting body of the International Tribunal for the Far East so that he could make full use of its human and material resources to carry out the prosecution of the Tribunal. In accordance with the provisions of the Charter of the International Tribunal for the Far East, the Chief Prosecutor was completely responsible for the “investigation” and “prosecution” of crimes of the alleged offenders, and the prosecutors dispatched by the other Allies could only render assistance to him.14 Obviously, the prosecution organization of the International Tribunal for the Far East was the “single-head system”, or a “dictatorial system” or “arranged system”. That was one of the biggest differences between the Tribunal for the Far East and the Nuremberg Tribunal in terms of organizational principles. In Nuremberg, they adopted the “collegiate system” in the prosecution, the authority of the  See Article 8 of the Charter of the International Military Tribunal for the Far East.

14

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Chief Prosecutor was implemented by the Commission forged by prosecutors from four countries, who took turns as the chairman of the Commission, and the prosecutors from four countries were equal in rights and obligations.15 Since the formation of the Tokyo Tribunal and the formal appointment of Keenan as the Chief Prosecutor, he immediately mobilized all the staff of the IPS to begin a variety of prosecution preparations. Additionally, he hired a group of “experts” experienced in evidence investigation from the United States. At the beginning of 1946, the preparations for the prosecution were entirely controlled by the Americans as the organization of the Tribunal was not yet in place and prosecutors from other countries had not arrived in Tokyo. In general, the preparations for the prosecution of the Far East Tribunal were divided into the following items or steps: first, interrogating the criminals to obtain a confession; second, collecting the documents that could be used as evidence from a mountain of Japanese government records; third, conducting the field investigation to obtain the written testimony of the witnesses and making appointments with them to appear in court; fourth, contacting government officials and relevant organizations of the Allied Forces to collect documents and evidence; fifth, selecting the defendants for the first trial; sixth, drafting the indictment (or “prosecution”) and its annex. All the work mentioned above was undoubtedly daunting, particularly because of the wide range of areas, the length of time, complex types of crimes, and numerous defendants involved in the case. We will take a brief look at how that work was carried out. First, we will discuss the interrogation and confession of criminals. In the old judicial system, an oral confession was almost the only evidence of a crime, and as long as the prisoners did not admit their crimes, the case would not be settled. On the other hand, once the prisoner made an oral confession and added a cross sign or pressed his fingerprint on the record of his words, everything would be resolved, no matter what method had been employed. Therefore, there were many brutal phenomena of “extracting confession by torturing”, “forced confession”, or forced signature or fingerprints on a confession. The prisoner’s confession was not regarded as the only evidence of the crime in the modern judiciary system. It was forbidden to use physical  See Article 14 of the Charter of the International Military Tribunal of Nuremberg.

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punishment or threat to force prisoners to make a confession and to admit his own crime. However, the oral confession voluntarily provided by the prisoner, free from threat, was still strong evidence of the court’s conviction of guilt and the measurement of penalty as a person would never admit the crime which he had not committed, and for some matters, only the person concerned knows the details. Because oral confession is still important and valuable evidence in the modern judicial system, it became a priority in the preparation of prosecution to interrogate nearly 100 Class-A Japanese war criminals detained in the Sugamo Prison and take down their confession. In fact, it had begun in the last three months of 1945, when the war criminals were put into prison in batches. However, interrogations at that time were very superficial and preliminary due to the lack of manpower for prosecution and the insufficient amount of background materials. The questions raised to the prisoners were not in depth, and therefore they could not hit home to dig out the truth. However, several war criminals who had committed major crimes were released during the superficial and preliminary investigation process. For example, Ueda Yoshitake was released by the IPS with the excuse of “no prosecution intended due to the lack of evidence” after such a hasty ­“interrogation”. Although the release of Goko Kiyoshi came later, he did not undergo a rigorous interrogation either. The interrogation was often used by the IPS as a means of achieving secretive political purposes. For the general Class-A war criminals under custody, interrogation by the IPS was very serious and effective. During the first three months of 1946, from the publication of the Tribunal Charter to the finalization of the indictment, the IPS had been very active in interrogating prisoners and taking down their confessions. First, the manpower was strengthened. A group of highly skilled and experienced investigators dispatched from the United States by the IPS arrived in Tokyo. Most of them were professional investigators the FBI, so they were good at understanding the mentality of prisoners and employing interrogation techniques. As long as they had the background materials, they were skilled at tracking and digging out the truth. Second, they had a better understanding of the background information. As a result of the preparation and some preliminary attempts over the previous months, all the prosecutors involved in the interrogation became familiar with Japanese history, society, and politics as well as the historical experience and mentality of the war criminals from the real contacts and government files. Third, the accompanying prosecutors and their

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assistants from other countries arrived in Tokyo. Although they rarely directly participated in the interrogation, they could provide background materials and various questions that need to be clarified by the prisoners. Fourth, as the organization of the court was almost complete and the indictment had to be written as soon as possible, it was a prerequisite to select the defendants for trial from among the war criminals under detention. However, it was not possible to do so without a general and thorough interrogation. Due to the reasons mentioned above, it became a particularly urgent task in the preparation of the prosecution to interrogate the prisoners in custody and take down their confessions. They mobilized more people to engage in it, but the main force was still the FBI “experts” from United States and the henchmen of Chief Prosecutor Keenan. The form of interrogation by the IPS was very special. As there was no independent interrogation procedure in the Anglo-American law system, the “pre-trial” approach was adopted in the courtroom rather than in a prison. The International Tribunal for the Far East had generally adopted the Anglo-American system in its proceedings, but it had its own unique approach in investigation. The interrogation of the Japanese war criminals was carried out by the IPS in the Sugamo Prison where they were kept in custody. The interrogation could also be carried out at home for the war criminal who was released on bail for treatment of an illness.16 Interrogation was neither as grand as the pre-trial in Anglo-American style nor as simple as sending one or two people to get an interview. In addition to the prisoners, investigators, and translators, there were also clerks and stenographers present during the interrogation. Before the commencement of the proceedings, the investigator also had to take an oath along with the criminal, the registrar, the translator, and the stenographer. After the interrogation, the stenographer would translate the shorthand recorded as the formal “interrogation record”, and then it

16  For example, the interrogation and taking the confession of Hiranuma Kiichiro, the former Prime Minister, was carried out at his home. At the age of 80, Hiranuma was released on bail for illness and nursed at home. Therefore, every time he was interrogated, it was conducted at his home by the interrogator with the clerk, the translator, the stenographer, and so on, all present. Using his age as an advantage, Hiranuma often said that he could not answer many questions during the interrogation as he could not remember. At that time, his wife would provide him with some “tips”. It was said that it could “help” him “recall”.

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would be signed by the investigator, the translator, and the clerk to show its solemnity. But neither the first draft of the shorthand nor the formal interrogation record after the translation need be read to or reviewed by the criminal, who did not need to sign and confirm that there was nothing wrong. That was a major drawback in the interrogation process because the defendant and his defense lawyer could often raise objections when the prosecutor submitted such an “interrogation record” to the court as a document of evidence. They deliberately expressed their doubts, even denying the confession he had made at the time of the interrogation. In that case, the investigator or other staff present at the time of interrogation had to be summoned by the court. Those unexpected difficulties, to a certain extent, delayed and disrupted the trial process of the court. As noted earlier, the interrogation was a very arduous task. It was by no means an easy task given the case handled in the Far East Court, which featured a wide range of territory, long history, a variety of crimes, particularly the large number of important prisoners in custody and their complex activities in the political arena in Japan for nearly two decades. A qualified investigator first needed to understand the general situation of politics, economy, military affairs, and diplomacy of Japan in the past two decades. Second, he could only put forward some key questions when he had studied what important positions the prisoners had held and what crimes they had committed. Of course, the preparation by the investigator was often based on mountains of documents from the Japanese government and clues provided by a number of Japanese people who were in contact with the IPS, but he had to exert great effort to dig, sort out, and choose those materials. Additionally, he had to use his own wisdom to master the investigation techniques and the prisoners’ mentality to track them step by step throughout the interrogation. Only in that way he could make outstanding achievements so that the confession he took down could be used as strong evidence in the court during prosecution. In general, the interrogation by the IPS was quite successful and fairly high quality. Much of the confessions from the prisoners had been effectively used by the prosecutor to present to the court as strong evidence in support of the criminal charges. The interrogation had always been the most intense and arduous task of the IPS from the complete arrest of the major Japanese war criminals at the end of 1945 to the commencement of the trial in May 1946. At an early stage, the subjects of interrogation were all Class-A war criminals

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who were in custody, so it was hard to go through it with detail and depth. At a later time, the interrogations focused on the 28 defendants in the first trial after they have been decided on. Some defendants with complex histories had been interrogated as many as five or six times, with confessions of dozens of pages. The average of meetings for an interrogation was more than twice. The closer the beginning of the court trial was, the more intense the interrogation became. There was a reason for that. In accordance with the principles of the Anglo-American law system, the interrogation and the taking of a confession by the prosecutor could only be conducted before the court accepting the indictment. Once the court had accepted the indictment and appointed the date of the commencement of the formal hearing, both parties (prosecutors and defendants and their defense counsel) forged two hostile groups. They could not contact with each other without the consent of the court or each other’s consent. The prosecutor was forbidden to have any contact with not only the defendant, but also the witnesses provided by the defense, otherwise he would be charged with “tempting the witness of the other party”.17 The same was true for the defendant or his defense lawyer regarding the witnesses provided by the prosecution. In short, after the trial began, both parties to the litigation should be treated as two hostile entities with distinct barriers and vigilance; the defendants at one side of the battle can definitely refuse to cooperate with or provide any assistance to the prosecutor let alone accept his interrogation and statement taking. That principle was not expressly stipulated in the charter or procedural rules of the International Tribunal for the Far East. It was purely an unreasonable but unbreakable traditional practice in the Anglo-American law system, which was adopted by the International Tribunal for the Far East. That proved the great impact of the traditional concept of the Anglo-­ American legal system upon the process of the Tokyo trial. At the same time, it also explains why the interrogation and the taking of a confession

17  This offense, “tempting the witness”, means to confuse, soften, entice or bribe the other side’s witness, making him less capable to testify for the other side. In the common law practice, each side to the legal proceedings can consult with its own witnesses, even induce or guide them on what to say and how to say it. However, it cannot contact any witness for the other side, otherwise is chargeable with “tempting the witness”. This practice treats the witness like a “private property” and is quite unreasonable. The only remedy for either side is, when exercising its right to “cross-examination” in court, to attack as much as possible the other side’s witness and his testimony, and point out all the mistakes and contradictions therein, thus reducing the probative value of such witness’ testimony.

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from the defendants by the IPS had to be hastily completed before the court formally accepted the indictment on April 29, 1946.18 The second major task of the IPS in preparing for prosecution was to find materials related to the crimes of the defendants from the numerous archives of the Japanese government. Those materials, on one hand, could be used as background reference for interrogation and recording of a confession before the hearing, while on the other hand, they could be used as a written document to the court at the time of the hearing to support the prosecution of the IPS. Because those materials were recorded from documents of the Japanese government, their value was undoubtedly very high. But it was by no means a simple matter; it was instead a very arduous job to search for that type of material. The reasons are as follows: (1) Although the archives of the Japanese government were piled up in the archives room on the third floor of the Far East Court Building, they were not the entirety of the Japanese government documents. A large part of the documents had long been blown up by planes or burned by Japanese officials before the surrender. Even should the staff work hard and beat their brains, it would have been impossible to figure out all the crimes committed by each criminal from the remaining documents. Fortunately, the most confidential documents the Japanese government had hidden in several boxes that were buried in the cellar (detailed minutes of previous Royal Conferences, Cabinet meetings, Ministers’ meetings, conclave meetings, and highranking officials meetings) were excavated because of the legendary discovery by the occupation army.19 Those documents are displayed in the archives of the Tribunal. It had provided extremely reliable 18  Among the war criminals accused by the International Tribunal for the Far East, Itagaki Seishirō and Kimura Heitaro were not interrogated. As the Japanese were surrendering, both of them were leading the Japanese troops stationed overseas (Itagaki in Singapore, Kimura in Myanmar). They had been escorted to Tokyo and put into the Sugamo Prison just before the court proceedings. As a result, it was too late for the prosecution to carry out the interrogation and make a recording of their confession. The defendants, Shigemitsu Mamoru and Umezu Yoshijiro, also had a similar situation. The reasons will be mentioned in the next section of this chapter. These two war criminals had been arrested and imprisoned on the eve of the indictment, and there was no time for the Prosecutor to interrogate them and take down their verbal evidence. As noted above, the Prosecutor and the defendant were not allowed to have any contact with each other once the indictment had been filed. 19  As for the legendary discovery of secret files of the Japanese government in these boxes, see Sect. 2.6 of Chap. 2 in this book.

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evidence for the forming of the aggression policy of the Japanese government, the launch of the war of aggression as well as the ideas, speeches, and roles played by the accused war criminals who had served as Prime Minister or Minister. The evidence had to be accepted by the court. The prosecution had made full use of the materials when it came to the prosecution of some main war criminals. (2) Although the Japanese government archives collected by the court were not complete, they were still extremely numerous. Japanese people commonly used Chinese words “as vast as the open sea” and “so many as to make the ox carrying them perspire and to fill a house to the rafters” to describe its multitude. It was sometimes as difficult as finding a needle in a haystack to find out a section or a line related to the crimes of some war criminals from a multitude of files. To effectively use such files meant a huge amount of labor and hard work. (3) The difficulties based on language were also great. The documents of the Japanese government were written in Japanese, and the staff of the IPS knew little Japanese. Therefore, they had to hire Japanese people to review the documents. But the quality and ­faithfulness of these Japanese translations were not without problems, which added more complexity and difficulty to the work. Because of the above-mentioned difficulties, the IPS did not make much progress at the time of the drafting of the indictment or at the beginning of the opening of court. By that time, they had found only few documents that could barely support the indictment and could be used against some of the defendants. As for the evidence that could be used against each defendant, they were found and put forward later during the trial process as the staff were more skilled in the search for evidence from the “numerous” archives, their knowledge of Japan’s history, politics, and national conditions had increased and the prosecutors of the Allied Forces, particularly the accompanying prosecutors and their assistants from China and the Soviet Union could also intervene to help by that time. For example, many pieces of strong evidence about the crimes committed by Shigemitsu Mamoru and Umezu Yoshijiro were found and extracted from the Japanese archives by Soviet prosecutors, and those of the crimes committed by Doihara Kenji and Itagaki Seishirō were found and extracted from the Japanese archives by Chinese prosecutors, such as Ni Zheng, Wu Xueyi, Liu Zijian, and others. Those were presented in court after the Tribunal started its open sessions, and some of them, being found quite late, were submitted as supplementary evidence at the stages of crossexamination of the defense witnesses and the rebuttal by the prosecution.

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It should be pointed out that providing evidence was one of the main tasks throughout the trial process. There were always ways for a party to provide evidence to their own advantage to the court at an appropriate stage as long as they could find it. Therefore, the prosecutors had taken endless efforts to dig out evidence before the end of the trial. It was different from the interrogation of war criminals and the recording of the confessions, which had to stop immediately upon the start of the trial. There are two things worth mentioning here. First, in addition to the numerous Japanese government archives displayed in the Far East Court Archives, there were a small number of other documents and manuscripts that cannot be seen by the outsiders, such as “Manchuria Memorandum”, “The Diary of Marquis Kido”, “Saionji Notes” and so on. Although such materials were not much, they were also the source of the evidence for the litigants. Second, to maintain the principle of “fairness” and “equality”, the court allowed not only the prosecutors but also the defense lawyers to go to the archives to read them arbitrarily and retrieve the information they needed. As a result, the archives room became the “common arsenal” for the litigants, and there were several groups of prosecution officers and defense lawyers who worked diligently to “salvage” more information every day. As two hostile groups in court, they followed the principle of “peaceful coexistence” and “mutual non-infringement”, “doing everything they can and taking what they need” from the archives room. It was a very special and interesting phenomenon for the Far East court. The third task of the IPS in preparation of the trial was to send people to conduct on-the-spot interviews and investigations regarding the evidence of crimes committed by the war criminals. As the crimes of the Japanese war criminals had been committed throughout East Asia and the Pacific region, such interviews could only be focused and selective rather than being universal and comprehensive. That method was particularly appropriate for certain types of crimes but of little use for some other crimes. For example, the evidence on the formation of the Japanese policy of aggression and the launch of the aggression war in the crime of peace destruction could only be found in the Japanese government archives and the verbal evidence of the major war criminals. It would be futile to conduct interviews and investigations in other places. But it was very useful to conduct interviews and field investigations in certain areas for some inhumane atrocities committed in Asia by Japanese war criminals, such as mass murder of civilians, abuse of prisoners, robbery of property, rape of women, and so on. First, they could take down testimony from the local people who had witnessed or experienced it. Signed by the narrator, it could be presented to the court as writ-

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ten testimony in the future. As they were the witnesses of the crime, their testimony was first-hand information with huge value. Second, during the interview, the staff could also pre-­appoint the so-called key witness to testify in Tokyo at the appropriate stage of the trial and make verbal complaints against the war criminals with oral statements. As the field investigation was particularly appropriate for the atrocities of the Holocaust, the IPS had used it many times before the trial and it was very rewarding. For example, for the atrocities of the Japanese Army in Manila and other places, the “Bataan Death March”, forced labor in MyanmarThailand Road, arbitrary killing in the concentration camps in Southeast Asia, they had sent staff to conduct field investigations in the Philippines, Indonesia, Myanmar, the Southeast and collected a lot of written testimony. However, the most accomplished was the field investigation regarding the Nanjing Massacre, which was conducted by Chief Prosecutor Keenan. The Nanjing Massacre was one of the most striking atrocities in World War II, with its size, length of time, and the victims of the murder, all of which were rare in history. It had aroused a sensation across the world and was universally condemned by any human beings with conscience. The IPS, which was responsible for accusing the Japanese war criminals, would definitely make it as a matter of focus, especially because the culprit and principal criminal was no one else but General Matsui Iwane who had been arrested and was under detention. To thoroughly clarify the truth of the incident and collect more evidence to support the prosecution, Chief Prosecutor Keenan employed a special-purpose aircraft from the GHQ in early March 1946 and led six to seven effective prosecutors (in person) from Tokyo to China, accompanied by their Chinese counterparts. They had been in Nanjing, Shanghai, Peking, and other places for about two weeks. It was also true that Keenan and others came to China with another purpose—sightseeing.20 Keenan often said to others: “China is an old country with an ancient civilization. It tops the world in historic sites and scenic spots. It would be a great regret to go to the Far East without tour20  Touring and sightseeing were important reasons for Keenan and his followers to go to China. After Keenan returned to Tokyo, someone asked him how about the trip, and he replied: As long as you see Temple of Heaven in Beijing, it is worthwhile trip. It is evident that he speaks highly of Chinese historic sites and scenic spots. Keenan was quite rich as a lawyer in the United States. He bought a lot of antiques, calligraphy and painting, brocade and jewelry on the trip in China. He was most disgusted with the prevailing bargaining system (“The seller can ask a sky-high price, the buyer can make a down-to-earth offer”) in China at that time, and he often complained that the price of the same thing he paid for was sometimes more than twice as that paid by his peers.

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ing China.” However, Keenan and his followers came to investigate the evidence after all, at least nominally so. As a result, they also made some achievements by collecting documents and interviewing witnesses. During their trip to China, they visited a number of official organizations and charities, collected a lot of statistics on the Nanjing Massacre, visited a number of Chinese and foreign witnesses, took a number of written testimonies, and made an appointment with a dozen of the witnesses who went to court in Tokyo to testify. In addition, they also made some investigations regarding who fired first in the 1937 Marco Polo Bridge Incident, and also made appointments with some key figures to go to court in Tokyo to testify (such as Wanping Administrative Commissioner and County Chief, the 29th Army Deputy Commander and the mayor of Peking). During the course of all the interrogations, the IPS had done an excellent job in providing evidence about the Nanjing Massacre and the provocation of the Marco Polo Bridge. It shows that the field investigation was meaningful for the preparation of the prosecution, although it consumed many financial resources. However, due to the constraints of human resources and financial support, the field investigation and interviews had completely stopped after the submission of the indictment and the beginning of the trial. At that time manpower in the IPS was reduced a lot. Most of the staff from the US Federal Bureau of Investigation returned to the United States as they were temporarily transferred to help with the interrogations and the recording of confessions. The staff that had left and the original staff of the IPS exerted almost all their efforts into the “court-struggle”. The solicitation of documents and the written testimony from the Allies was in fact taken by the accompanying prosecutors of the respective countries, who tried to obtain them from the organizations or individuals of their own countries. In terms of procedure, the IPS would maintain official contact with the Allied countries in the collection of evidence and documents. But it was just a matter of form; in fact, it still relied on the prosecutors sent by the Allies because they knew their own country best and in what way and where to get the required documents. Their actual efforts were much more effective than the documents of the IPS. Various materials provided by the Allies, such as government documents, investigation reports, and written testimony were very helpful in the prosecution by the IPS. Many of those materials were presented to the court as evidence during the course of the trial. In that regard, China and the Soviet Union made more contributions. However, due to the stub-

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born prejudice and evil intents of the US Chief Prosecutor, a considerable portion of those materials were shelved and not presented to the court.21

3.3   Selection of, and Bibliographic Guide to, 28 Defendant Criminals From the two sections above, we can see that the IPS of IMTFE obtained a huge number of confessions through extensive investigations after arresting approximately 100 Japanese war criminals (“Class-A war criminal”), while the IPS also released criminals one after another at its own discretion with the excuse of “lack of evidence”. Meanwhile, the IPS had also been dedicated to digging through Japanese government archives piled up in the archives office of the court, and numerous files from the Allied Powers. In addition, the IPS also assigned reporters to do the fact finding and evidence interviews regarding the crimes of only a few war criminals. As a result, in the early spring of 1946, the IPS had a general command of the past records, positions, and crimes of those Class-A war criminals under detention. The complicated political relationships among them were also known to the IPS in general. The materials they had collected were barely enough for drawing up the indictment. However, there was one preliminary question before drafting the indictment, and that was, among so many Class-A war criminals in custody, how many of them and who should be prosecuted as the first defendant(s) and submitted to the court for trial? It was not suitable to prosecute all the war criminals under detention in one case. As the Nuremberg trials were holding hearings at the same time, the number of Chief German war criminals tried was not more than 22. Moreover, the case tried by the Nuremberg Trial was much easier than that tried by the Tokyo Tribunal and the term of the crime was shorter than that of the latter. Therefore, the IPS decided to set the standard number of tried defendants as that of the Nuremberg Trials, not exceeding the maximum of 30, if there was any increase. Another preliminary question was when accusing the defendants of war crimes, what was the beginning date of the crime? And what was the end date of the crime? As to the latter, prosecutors all agreed on the year 1945 21  Some of the materials provided by China and the Soviet Union to the Prosecutor were related to the Japanese royal family, economic aggression, or the responsibilities of capitalist enterprises, which were put aside by Keenan. For example, the materials regarding the approval of the Bacteriological War by the Japanese Emperor and the crimes of Araki in the Japanese invasion of Siberia were suppressed by Keenan and failed to be presented to the court as evidence.

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when Japan surrendered, but as to the beginning of the crime, various opinions diverged and heated disputes followed with some saying that December 7, 1941, should be counted as the beginning, as the attack on Pearl Harbor was the cause of Japan’s invasion and a series of wars against other countries, which later constituted part of World War II. Some argued that July 7, 1937, should be counted as the beginning of the war crimes instead when the all-out war of aggression against China triggered by the Marco Polo Bridge Incident broke out. For the attack on Pearl Harbor and the following wars against countries in the Pacific all set the stage for its aggressive war in China. Others held the view that the Mukden Incident should be counted as the beginning date. As a matter of fact, the Second Sino-Japanese War started on September 18, 1937, when the IJA invaded Shenyang and occupied Manchuria (four Northeastern provinces in China). Some even considered the year 1928 to be the starting point for the sake of clarification. Because the Huanggutun incident occurred in April 1928 and was the cause of the Mukden Incident in 1931, from then on the hostility between Japan and China had already commenced and the attempt to encroach on the whole of China was thoroughly unmasked. There was no doubt that the last assertion argued with learning and logic, and was barely satisfactory from the Chinese point of view. The date could be further back, but there were difficulties in verification. After thoughtful consideration and bitter argument, the IPS decided to adopt the final assertion that the war crimes instigated against Japanese war criminals started in 1928 (Huanggutun incident) to 1945 (Japan’s surrender), altogether 17 years. Another dilemma arose after ascertaining the number of criminals being prosecuted (20 or 30 or so) and the period of crimes (approximately 17 years), which was, among those Class-A war criminals, who should be prosecuted first? In other words, which group of Class-A war criminals (20 to 30 people) should be selected to be the defendants of the first trial and be tried by the International Military Tribunal for the Far East? Heated disputes arose from this question in the IPS. Indeed, no objection was raised in terms of certain notorious and murderous culprits such as Tō jō Hideki. But as to some less infamous criminals, opinions varied among people. For instance, the associate counsel of the Soviet Union insisted Aikawa Yoshisuke (Representative of the House of Peers, Chairman of the Manchurian Industrial Development Company) and Nakajima Chikuhei (founder of Nakajima Aircraft Company, concurrently served as Minister of Commerce and Industry, Railway Minister and Minister of Munitions) should be the first defendants. However, Mr. Keenan (the

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prosecutor) did not agree with him as it was an established long-term policy for the American government to be partial to magnates and capitalists and both Aikawa and Nakajima were Japan’s successful entrepreneurs and capitalists. The policy was mentioned before when commenting on Goko Kiyoshi’s (Former Mitsubishi Heavy Industries President) sudden release.22 After long and heated discussions and disputes, Mr. Keenan finally chose the following 28 criminals as the first group of defendants (the order is arranged alphabetically according to their English first names): 1. (ARAKI, Sadao) 2. (DOHIHARA, Kenji) 3. (HASHIMOTO, Kingoro) 4. (HATA, Shunroku) 5. (HIRANUMA, Kiichiro) 6. (HIROTA, Koki) 7. (HOSHINO, Naoki) 8. (ITAGAKI, Seishirō ) 9. (KAYA, Okinori) 10. (KIDO, Koichi) 11. (KIMURA, Heitaro) 12. (KOISO, Kuniaki) 13. (MATSUI, Iwane) 14. (MATSUOKA, Yosuke) 15. (MINAMI, Jirō ) 16. (MUTO, Akira) 17. (NAGANO, Osami) 18. (OKA, Takasumi) 19. (OKAWA, Shumei) 20. (OSHIMA, Hiroshi) 21. (SATO, Kenryo) 22. (SHIGEMITSU, Mamoru) 23. (SHIMADA, Shigetaro) 24. (SHIRATORI, Toshio) 25. (SUZUKI, Teiichi) 26. (TOGO, Shigenori) 27. (TŌ JŌ , Hideki) 28. (UMEZU, Yoshijiro) 22  As to Goko Kiyoshi’s release, refer to the last footnote of the first section of this chapter.

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The majority of the 28 war criminals were arrested around the end of 1945 and were detained in Sugamo Prison with the exception of four: Shigemitsu Mamoru, Umezu Yoshijiro, Itagaki Seishirō , and Kimura Heitaro. Shigemitsu Mamoru and Umezu Yoshijiro were representatives of Japan’s surrender. On September 2, 1945, on behalf of the Emperor of Japan, the Japanese government and the Japanese Imperial General Headquarters, they signed the Japanese Instrument of Surrender when representatives of the Allied Powers were holding the surrender ceremony in Tokyo Bay aboard battleship USS Missouri. Therefore, the GHQ had “good opinions” of them, more or less, or at least thought that they should be somewhat taken care of. Consequently, neither of them was arrested under the four arrest warrants. In consideration of their high positions and notoriety, there was no denying that they were both qualified to be “Class-A war criminals” and listed as major war criminals to be tried first. As a matter of fact, the IPS had already listed the two in the indictment when deciding on the first batch of people to put on trial. However, they were arrested at the time that the indictment was being presented to the court. Therefore, they were put in prison after the formal prosecution. As was pointed out before, the prosecutor and the defendant were in positions as antagonists after the indictment was filed, and were unable to contact and communicate with each other. For that reason, the IPS did not have enough time to interrogate then or take their confessions, so the interrogation reports and confessions did not exist in the materials of complaint against Shigemitsu and Umezu. The same situation occurred to Itagaki Seishirō and Kimura Heitaro. The reason for their absence under the four arrest warrants in 1945 was not that they were given some extra consideration but that neither of them was in Japan at that time. When Japan surrendered, General Itagaki and General Kimura were fighting abroad with prominent official posts in the army (Itagaki was the Commander of the Seventh Area Army in Singapore, and Itagaki was Commander-in-Chief of the Japanese Army in Burma). After the surrender of Japan, both were arrested by the local government. They were also selected by the IPS for the first batch of defendants being prosecuted because of their considerable notoriety. However, they were not escorted to the Sugamo Prison in Tokyo until the eve of the trial. As a result, there was not enough time for the IPS to interrogate them or take their confessions. Apart from those four criminals, the remaining 24 of them were all detained in the Sugamo Prison for a long period of time and were carefully

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interrogated by the IPS. The interrogations were recorded in the confession report on file. The confessions were made use as evidence by the IPS in the court trial. The list of the 28 major war criminals as the first batch of defendants was satisfactory in general. The only regretful thing was that for some subtle reason, the IPS did not include any important financial magnates or capitalists such as Aikawa Yoshisuke, Kuhara Fusanosuke, or Nakajima Chikuhei. Overall, the list was barely satisfactory as all the defendants were overwhelmingly ambitious and notorious fascist aggressors, placing them above the Japanese people. They rose to great prominence in Japanese politics, military service, diplomatic propaganda, and other criminal activities over many years. In analyzing the status or war crimes of those 28 defendants, we could find: (1) Tō jō Hideki, Prime Minister (launched the Pacific War), Hirota Koki (an experienced diplomat), Kiichiro Hiranuma, and Koiso Kuniaki (long-serving fascist officer), enjoying reputations in Japanese politics, these four Prime Ministers were ringleaders of Japan’s invasive war throughout the prosecution period (1928–1945). (2) Araki Sadao and Minami Jirō , typical long-serving militarists who actively preached invasion. (3) Doihara Kenji, Itagaki Seishirō , and Umezu Yoshijiro, the most active and the evilest criminals in the long-term aggression against China, and Matsui Iwane and Hata Shunroku, the principal criminals committing atrocities against Chinese civilians. (4) Kaya Okinori and Hoshino Naoki, financiers and major initiators and executors who mobilized Japan’s economy and extorted China’s economy in wartime. (5) Nagano Osami, Shimada Shigetaro, Kido Koichi, Suzuki Teiichi, Sato Kenryo, and Oka Takasumi, major plotters and participants of the Pacific War in the Tō jō cabinet. (6) Kimura Heitaro and Muto Akira, the principal criminals committing atrocities in places such as the Philippines and Burma in the Pacific War. (7) Shigemitsu Mamoru, Togo Shigenori, and Matsuoka Yosuke, experienced diplomats actively spreading the plot of invasion; Oshima Hiroshi and Shiratori Toshio, actively collaborating with

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Germany and Italy—the Axis Powers to organize a military ally against the Communist Powers. (8) Okawa Shumei and Hashimoto Kingoro, theoretical propagandists and agitators who crazily advocated fascism and the policy of aggression. It was not absolutely accurate to divide the 28 defendants into the above eight categories, because what they were doing in their long-term activities was complicated and varied in type, and did not stick to one pattern. The above division was made only according to the most distinctive crimes in their complicated criminal activities. Furthermore, we can see from the above eight categories that it was by no means coincidental for them to be listed as the first batch of defendants. They were selected for being major and representative criminals in the Japanese war of aggression.23 Of course, the list was not perfect enough to include all the representatives in eight categories or other categories. According to the IPS, that was only the first case of trial, there would be the second, third, and fourth case where other important criminals would be accused, as was assured by the IPS in its statement. But it was proved not so later. As the intention of the United States to shield Japan’s reactionary forces became more and more explicit, the IPS released most of the detained Japanese Class-A war criminals in batches or individually during the trial of the first case. Shortly after the first trial, the IPS released only one batch of Class-A war criminals detained in Sugamo Prison. Until then, the International Military Tribunal for the Far East had nothing to do and no case to try as there was no defendant to prosecute, and ended up being dissolved. The judges, how23  Golunsky (academician in Russian Academy of Sciences), the associate counsel of Soviet Union, was sent by the Soviet Union to attend the International Military Tribunal for the Far East. In a speech on “The Trail of Japanese Major War Criminals” on March 27, 1947, he divided the defendants in the Tokyo Trial into five categories: First, the Prime Minister; Second, the military dignitaries; Third, diplomatic dignitaries; Fourth, the financial and economic dignitaries; Fifth, the Japanese imperialist philosophers. He set aside important officers in the imperial court, such as Marquess Kido Koichi, as a separate class alone, which was a viable classification. But its problems were that the number of war criminals was too uneven, as the number of the defendants included in the “military dignitaries” amounted to more than a half, while the other types could only have two or three people. In addition, the classification of “military dignitaries” was so general that it was not clear enough to show their characteristics respectively and the focus of their crimes. Therefore, we did not adopt his classification.

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ever, longed to return home by finishing the trial as soon as possible. That perfunctory practice once had incurred the criticism and dissatisfaction of the Japanese masses. They asked why some criminals were sentenced to death or life imprisonment while others (beyond the arm of the law) with no legal punishment or no trial, as they were all war criminals with more or less the same crimes? It was difficult to reply to the confusion of Japanese masses with a logical answer. Therefore, the only thing that could be done was to admit that the Tokyo Trail, just as the Nuremberg Tribunal was, could only be deemed as a certain “symbolic” punishment. The following are the resumes of the 28 Class-A war criminals who first stood accused and were tried by the International Military Tribunal for the Far East (Fig. 3.1): [Each criminal’s age was counted from the year 1946 when he took his trial at the court. Their experiences from 1928 to 1945 (i.e. the term of crime accused in the case) were compiled according to Appendix E.—Author’s Note]

Araki Sadao (70 years old): Graduating from the Imperial Japanese Army Academy and the Army War College, he once served as a military attaché in Russia, Commander of the Kwantung Army, Bureau Chief of the Army General Staff, President of the Army War College, Commander of the IJA 6th Division and others. Araki held posts as follows from 1928 to 1945 (the period during which he was accused by this Tribunal when he committed these crimes): Chief of General Affairs of Military Training (1931); Minister of War in the cabinet of Prime Minister Tsuyoshi Inukai (December 1931 to July 1934); promoted to the rank of full general in 1933; became a member of the Supreme War Council from 1934 to 1936; Minister of Education during the Konoe and Hiranuma administrations (May 1938 to August 1938); an advisor to the government as a State Councilor (from 1940 to the surrender of Japan). Araki has always been thought to be a stereotype of an aggressive fascist militarist. He was ennobled with the title of baron for successfully occupying four provinces in Northeastern China. Once he exerted his influence on the Ministry of Foreign Affairs to withdraw from the League of Nations. After the incident on May 15, 1931, Masaki Jinzaburo (Vice Chief of the Imperial Japanese Army General Staff), Hayashi Senjuro (Inspector General of Military Training), and he gradually became three

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Fig. 3.1  Class-A war criminals

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Fig. 3.1  (continued)

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central persons of the IJA.24 After the March Incident and the October Incident, junior officers of the Imperial Way Faction and fascists once intended to support the military dictatorship, which was established by those three generals and headed by Araki, but ended up in failure.25 24  The so-called May 15 incident refers to the incident in 1932 where the State’s Prime Minister Tsuyoshi Inukai was killed. When the “September 18 Incident” occurred, after the Japanese occupation of four provinces in Northeast China and the establishment of “Manchukuo”, the Japanese government had two different views. One faction advocated reopening negotiations with China, so that the situation could be temporarily alleviated; the other advocated seizing the opportunity to continue expanding the force of aggression against China. Tsuyoshi supported the former, while Araki belonged to the latter. At the end of 1931, Tsuyoshi was ordered to set up a cabinet, and he had intended to appoint Abe Nobuyuki as Minister of the Army, who was finally superseded by Araki because of the pressure and threat from the army. Araki was supported by the “imperialist” fascist military. Consequently, disputes often occurred between the Prime Minister and the Minister of Army and the conflict went to the utmost On May 8, 1932, when Tsuyoshi delivered a speech in Yokohama opposing military affairs and praising democratic politics. On May 15, 1932, Prime Minister Tsuyoshi was assassinated by several junior officers of the Imperial Way Faction when resting alone in the official residence. The defendant Okawa Shumei provided a pistol for the assassination and Hashimoto Yoshiro, another defendant, also admitted in his book The Way of Reconstruction of the World, that he was also involved in the assassination. 25  The so-called March incident and “October incident” refers to the two unsuccessful “coups” occurred in Japan before and after the 1931 “September 18 Incident”. The “March incident” was planned by the defendant Hashimoto and Okawa. It was initially planned for Okawa to start and lead a mass demonstration of people who were dissatisfied with parliament and political parties, where he planned to confront the police and thus resulted in horrific chaos. Then the army declared enforcement of martial law. The aim of dissolution of parliament and the establishment of a military dictatorship would thus be achieved. Hashimoto handed over 300 bombs of the Army’s maneuver to Okawa, who wanted to use the bombs to cause chaos among the masses and to make it more real as a riot. But because of Okawa’s rejoicing and enthusiasm, he put the conspiracy plan to the then Minister of the Army Ugaki, who just saw the whole picture of the conspiracy, and immediately used all his strength and influence to dispel the plan. Therefore, the so-called March incident was stopped before it occurred. The “October event” was also an unsuccessful “coup” attempted by junior officers. At that time, when the “September 18 Incident” had occurred, there were some fierce junior officers dissatisfied with the government’s misgivings and suffering from the loss, so they advocated the Japanese Army should simply occupy and develop the whole of “Manchuria” to initiate further aggression against China. However, they believed that to implement that idea, they had to first dissolve the Congress, abolish political parties, and establish a regime of military dictatorship by the officers. Their plan was to “assassinate the head of government to clarify the ideological and political atmosphere”. Hashimoto and his Sakurakai (Cherry Blossom Society) would be the center of the conspiracy plan. Hashimoto himself confessed that to establish a government headed by Araki as soon as possible, he intended to implement the plan in early October in 1931. But because Colonel Hiroshi let out the secret, the conspiracy was dissolved before its implementation. Organizers such as Hashimoto had also been arrested.

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Doihara Kenji (64 years old): Graduated from the Imperial Japanese Army Academy and the Army Staff College, he had long been engaged in espionage and sabotage in China, and was most familiar to the Chinese as a Japanese spy. He commanded the IJA 30th Infantry Regiment, headed the Houten Special Agency in Mudken (Shenyang in Liaoning Province), and commanded the IJA 9th Infantry Brigade. Doihara held the following posts from 1928 to 1945: head of the special agency in Northeastern China (September 1931, the year of the Mukden Incident); Mayor of Shenyang (September 1931–October 1931, the Japanese occupation of Shenyang); GHQ of the Kwantung Army (1933); Commander of the Fifth Army Division to Northeastern China (1938 to 1940); Chief Counselor of the East Hebei Autonomous Council, a member of the Supreme War Council (1940 to 1943); General in the Japanese Army Air Force (1941); promoted to General (April 1941); Commander-in-Chief of the Eastern District Army (1943); Commander-­ in-­Chief of the Japanese Seventh Area Army in Singapore (1944 to 1945); Inspector General of Military Training (April 1945). Doihara was most noted for being a “China Hand” among the Japanese officers for he was once a prominent disciple of Sakanishi Toshihachiro, Yuan Shikai’s Japanese Adviser. Before the Mukden Incident on September 18, 1931, he had been in China for more than 20 years, during which he was acquainted with Chinese officers and politicians with the help of being fluent in Chinese. Having long engaged in espionage operations, he collected information for the Japanese government and exerted every effort in setting one warlord against another. As a result, he intervened in almost every civil war or coup d’étate (Zhili–Anhui War, the First Zhili–Fengtian War, the second Zhili–Fengtian War and the Manchu Restoration, for instance) in a period of regional division ushered by the Beiyang Clique. As to the incidents such as the Huanggutun incident, the Mukden Incident, Marco Polo Bridge Incident, the founding of the Manchukuo, as well as others, those were all his “masterpieces” elaborately planned and plotted. In 1931, he was merely a colonel, while in 1941 he was promoted to be a general for his contributions in the Japanese invasion of China, which was uncommon in Japan’s history. Along with the notorious Itagaki Seishirō , Isogai Rensuke, and Okamura Yasuji, he graduated from the 16th class of the Imperial Japanese Army Academy. They were all determined to dedicate themselves to the invasion of China and final destruc-

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tion of China.26 There was no doubt that Doihara was the most active, cruel, and merciless among those four people because he committed countless notorious and infamous crimes against the Chinese. Hashimoto Kingoro (57 years old): As a graduate of the Imperial Japanese Army Academy and the Army Staff College, he was the military attaché to the Japanese Embassy in Turkey and the Japanese Embassy in Russia. When in Turkey, he had great admiration for President Kemal so that when he returned to Japan, he borrowed from the Turkish National Movement to establish the Sakurakai (Cherry Blossom Society) with young officers, establishing a new cabinet based upon the ideology of “the supremacy of the Emperor”. At that time, he was no more than a Lieutenant Colonel but could deceive and stir up people’s minds so well that a large number of young officers followed him. Hashimoto’s experience from 1928 to 1945 is as follows: He was posted to the Imperial Japanese Army General Staff (since 1933); retired from military service of the Japanese Imperial Army (February 1936); wrote Declaration of Hashimoto Kingoro (1936); returned to the Japanese Imperial Army (1937); authored many books, published articles and other publications, and often made public speeches preaching the doctrines of aggressors; he took part in certain social groups to defeat politicians and officials lacking in ambition; one of the founders of the Imperial Rule Assistance Association (1940); elected to be a Member of the House of Representatives (1942).

26  The names and crimes of these four ambitious Japanese invaders were familiar to the Chinese people. Their fates were not the same. Doihara and Itagaki were two of the defendants accused in the International Military Tribunal for The Far East, and were finally sentenced to death. Isogai was not accused by the Section to the Court because of a lower status. He was escorted to China for trial in the summer of 1946, as required by the Chinese, and was soon sentenced to death. Okamura was one of the four “luckiest” ones. He was not sentenced to death but remained at large. As the last Commander-in-Chief of the Japanese Army in China, Okamura was well known to the Chinese people for his notorious “three light policy”. When Japan surrendered, he was ordered to handle Japan’s surrender in China, dispatch and other matters concerning rehabilitation, and therefore established a closer relationship with the Chiang Kai-shek’s government. As a result, although Okamura was also listed as a war criminal, he was sentenced to acquittal and released before the Chiang Kaishek escaped to Taiwan on January 26, 1949. Less than five days after his release, he was picked up by an American warship to Japan along with 260 Japanese war criminals who had been sentenced and served in China. When he returned to Japan with impunity, he continued to engage in activities hostile to the Chinese people.

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Hashimoto was used to preaching feverishly great-nation chauvinism and military dictatorship, being an extreme nationalist believing in fascism. Okawa Shumei (another fascist extremist) and he were the principle conspirators of the March Incident and October Incident in 1931. They attempted (in vain) to overthrow the cabinet by coup d’étates and to establish a military dictatorship. Failing in the coup d’étate, he again called some young officers together to set up a fascist group—“Great Japan Youth Party”. After the outbreak of the Second Sino-Japanese War in 1937, he led the Japanese Imperial Army fighting successively in various areas such as Hangzhou Bay, Wuhu, Songjiang, Lushan in Jiujiang, and other places in China. In addition, he got Japan in trouble with foreign affairs by savagely attacking and sinking the ships Paney and Ladybird (see Chap.1, Footnote 1). He reorganized the Great Japan Youth Party into the Great Japan Sincerity Association, and later on behalf of the Great Japan Youth Party, he was involved in the new Imperial Rule Assistance Association in which he held the key to the executive chief of the Association until the surrender of Japan. Hata Shunroku (68 years old): As a graduate of the Imperial Japanese Army Academy and the Army Staff College, he was a typical Japanese fascist officer and was noted for advocating the mechanization of arms. In the Russo-Japanese War from 1904 to 1905, he held the post of a second lieutenant in the artillery. Wounded in the Battle of Mount Song with a bullet shot through his breast, he was thin and weak all his life, a sick man. Hata held the following posts from 1928 to 1945: a field command of the IJA 14th Division (1933); head of the Imperial Japanese Army Air Service (1935); Commander of the Taiwan Army of Japan (1936 to 1937); Inspector General of Military Training, concurrently severed as a member of the Supreme War Council (August 1937); promoted to the rank of General (February 1937); Commanding General of the Central China Expeditionary Army (February 1938); a member of the Supreme War Council (January 1937); Minister of War in the term of Prime Minister Nobuyuki Abe (August 1939 to July 1940); appointed twice the Commanding General of the Central China Expeditionary Army (July 1940 to 1944); promoted to the Field Marshal, a member of (June 1944); Inspector General of Military Training (November 1944 to the surrender of Japan). Having served in the IJA for about 40 years, Hata was a prominent figure full of military tactics among the Japanese officers. From time to time, he was involved in the political plots and fights of young fascist officers. Hata was directly responsible for innumerable atrocities committed

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by the IJA against the Chinese for he had been the commanding general of the Central China Expeditionary Army twice and fought successively in various regions in the Yangtzi Valley for four to five years. Kiichiro Hiranuma (80 years old): He was the 35th Prime Minister and graduated with a degree in law from Tokyo Imperial University. As the oldest among the 28 major criminals in the Tokyo trial, he had seniority as the Minister of Justice in 1923 and had long served the judicial circle before entering politics. He was a professional judge and head chief procurator in 1911. In 1923, in the second cabinet of Yamamoto, Kiichiro was appointed as the Minister of Justice, which was the first step for him to enter politics. He gave up his career as judge to get involved in politics wholeheartedly. Gradually, he transformed from an innate Shintoist to a vanguard and a leader of Japan’s fascism as he was the founder of Kokuhonsha (the National Foundation Society)—Japan’s earliest fascist group, and later took charge of it. Kiichiro held the following posts from 1928 to 1945: Founder of Kokuhonsha (the National Foundation Society) and its President (from 1926 to 1936), Vice President of the Privy Council (from 1930 to 1936); Vice President of the Privy Council (from 1936 to 1939); Prime Minister (from January 1939 to August 1939); Home Minister and Vice Premier in the second Konoe Fumimaro administration (July 1940 to October 1941); member of the Thought Control Council (August 1941), and President of the Privy Council (1945). The reason for the smoothness of Kiichiro’s politics was that his principle of “Great Japan” (dai Nihon shugi) and fascist doctrine could cater well to young radical officers in order to win their trust and support. By closely colluding with and supporting Araki, Masaki in the army, Kato, Heizo, and others in the navy, he was almost a “tumbler” in Japan’s politics. Once, in order to spread the seed of fascism, he drew people in judicial circles over to his side by taking advantage of his prestige as a judge for about ten years. Apparently, he put on sanctified airs in his old age and seemed to be a simple and kind elder, but inherently, he was a very ­insidious man concealing his real feelings. He was a secret schemer for almost every coup d’état in Japan. Hirota Koki (former Prime Minister, 69 years old): Hirota continued his education at Tokyo Imperial University and graduated with a law degree. He had dedicated his life to the Japanese diplomatic circles. Hirota was a career diplomat and a fascist believer. Having served in the Ministry of Foreign Affairs for several years, he was immediately promoted to the

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minister to the Netherlands. Later he was recalled to become the director of the Europe and America Department within the Foreign Ministry. Hirota held the following posts from 1928 to 1945: Ambassador to the Soviet Union (1930); Foreign Minister in the cabinet of Prime Minister Saito Makoto (from September 1933 to July 1934), Foreign Minister in the cabinet of Okada Keisuke (from July 1934 to March 1936); Prime Minister and concurrently Foreign Minister (March 1936 to February 1937); Foreign Minister in the cabinet of Prime Minister Konoe Fumimaro (June 1937 to May 1938); and member of the Cabinet Advisory Council (1940). When serving as the Prime Minister in 1936, Hirota signed the Anti-­ Comintern Pact with Nazi Germany. His inclination toward fascist Axis Powers was completely bared there and then. Later, when heading the Minister of Foreign Affairs in the Konoe cabinet, he signed the Tripartite Pact with Germany and Italy, formally demonstrating the strategy of collaborating with Axis Powers. Since 1937, Japanese aggression against China gradually had escalated into a stage beyond control. Despite the fact that Prime Minister Konoe was the first one to be blamed, as the foreign minister, Hirota also shouldered great responsibilities as he fawned over warlords and persisted in acting blindly. Just like Kiichiro, his political stock-in-trade also won reactionary officers’ support and favor by colluding with them in spreading fascist thoughts and ways of aggression. As the core force of the militarist group “The Black Ocean Society”, he also played an indispensable role in the Black Dragon Society (Kokuryu-Kai), a fascist group. Hoshino Naoki (55 years old): Hoshino graduated from the Law School of Tokyo Imperial University in 1917, and was employed by the Ministry of the Treasury upon graduation. As a man with great abilities, he was good at managing money matters through years of working, which helped him gain the reputation of an up-and-coming man in Japanese financial circles. Hoshino held the following posts from 1928 to 1945: Chief of the General Affairs Bureau of the Finance Department of Manchukuo (Manchuria) (1932); Chief of General Affairs of the Finance Department of Manchukuo (Manchuria)Vi (1934), Vice Minister of Finance of Manchukuo (1936), Chief of General Affairs Bureau of the National Affairs Office of Manchukuo (December 1936), Chief of General Affairs of Manchukuo (July 1938) (see Chap.1, Footnote 1), President of the Cabinet Planning Board in the Konoe Cabinet, and later became the

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Home Minister (from July 1940 to April 1941); Chief Secretary and Minister of State in the Tō jō cabinet (from October 16, 1941 to July 1944), and advisor to the Finance Ministry (December 1944). Hoshino was no more than a capable office worker in Japan’s Ministry of the Treasury, but gradually became a proficient aggressor after arriving in Manchukuo. In collusion with previous magnates of the Kwantung Army in Manchuria such as Hishikari, Honjo, Miyake, Okamura, Tō jō , and others, he won their trust and recognition, he grasped great financial power in Manchukuo with which he made cruel economic exploitation, plunder and extortion toward people in Northeast China, employing all the resources and manpower in northeast China to serve Japan’s strategy of the war of aggression. Engaged in those evil activities for eight years, Hoshino returned to Japan to hold an important post in the Konoe and Tō jō cabinets to make sure that Japanese aggression against China could continue, and meanwhile the Pacific War against the United States, Britain, and other countries could be waged. Hoshino was Tō jō ’s right-hand man in the eyes of the Japanese masses. Itagaki Seishirō (62 years old): Graduating from Japanese Army Cadet School, Sendai and the Imperial Japanese Army Academy, he once fought in the Russo-Japanese War from 1904 to 1905. Later, he joined the Kwantung Army to commit atrocities in Northeast China for a long period of time. Along with the notorious “China Hand” Doihara, Okamura, and Isogai, he graduated from the 16th class of the Imperial Japanese Army Academy. Chinese people harbored intense hatred for him. Itagaki held the following posts from 1928 to 1945: Colonel in the Kwantung Army (1929), Vice Chief of Staff of the Kwantung Army (1934), Commander of the Fifth Army Division (China) (March 1937), Chief of Staff of the Kwantung Army (from 1936 to 1937), War Minister in the Konoe and the Hiranuma cabinets and President of Manchurian Affairs Bureau of the Cabinet (from June 1938 to August 1939), Chief of Staff of the Japanese Army in China (September 1939), Commander of the Japanese Army in Korea (from July 1941 to 1943); member of the Supreme War Council (1943), and Commander of the Seventh Area Army in Singapore (April 1945). Promoted to be Major General of the Kwantung Army in 1932, he held the post in the Army General Staff in May 1937 and was promoted to General in July 1941. In 1929, Itagaki was merely a colonel of the Kwantung Army, and in 1938 was promoted to be the War Minister and to General in 1941. His “tremendous contributions” to the invasion of China accounted for his

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rapid promotion, the speed of which was unprecedented in Japan. When serving in the Kwantung Army, he was the major initiator and executor of some historical events, such as the Japanese invasion of Northeast China, forcing Northeast China to separate itself from China, and establishing Manchukuo, a puppet state in Northeast China and Inner Mongolia. It was said that he had dreamed about being the “emperor of the Manchukuo”. After waging the Second Sino-Japanese War in 1937, he then led the IJA fighting successively in various parts of China, such as Shanxi, Shandong, and the Subei region in which he committed countless crimes and atrocities. Just like Doihara, there was not even a woman or a child that did not know Itagaki’s name and crimes. At the time when Japan surrendered, he was serving as the Commander of the expeditionary force in Singapore. Therefore, he was sent away under escort to Tokyo the day before the International Military Tribunal for the Far East. Kaya Okinori (58 years old): He was the most preeminent criminal in managing money matters in wartime Japan and boasted as a “financial magician”. Kaya held the following posts from 1928 to 1945: Chief Secretary, Finance Ministry (1934), Minister of Finance in the Konoe administration (from June 1937 to May 1938), Member of the Advisory Committee of the China Affairs Board (1939) President of the North China Development Company (from 1939 to 1941), Finance Minister in the Tō jō administration (from 1941 to February 1944), and Director of the Imperial Rule Assistance Political Society (1944). The reason why Kaya could grasp financial power was that he could well pander to the aggression strategy and war policy in his political proposals and thus won the favor and support from fascist officers. In two most crucial terms (Japanese aggression against China and Pacific War) of Japan’s aggression war, he headed the Minister of Finance, the same post as the Commander-in-Chief of Finance in wartime Japan. In control of domestic finance, monetary systems, and foreign trade, he strongly ­supported the warlords in aggressive war by mobilizing the country’s financial resources. When heading the President of the so-called North China Development Company, he once directly exploited and plundered resources in China. Shortly before the Japanese surrender, he was made Chairman of a newly formed Postwar Currency Problems Committee, which was established by the Japanese government in a vain attempt to save the finance from the brink of bankruptcy. That was the last post he held in the government. But even the “magician” could do nothing to

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save the situation because Japan’s economy became increasingly deteriorated and inflation turned down sharply. Kido Koichi (58 years old): As a hereditary marquess, he was the grand-­ nephew of Kido Takayoshi, one of the leaders of the Meiji Restoration. Graduating from the Law School of Kyoto University, he had the closest friendship with Konoe Fumimaro, whose nickname was “playboy”, for both noblemen shared the same aspirations and interests. They became celebrated within the Japanese politics by colluding with and supporting each other. Kido entered politics upon graduation, and he held numerous minor bureaucratic posts in the Ministry of Agriculture and Commerce, followed by the Ministry of Commerce and Industry and the Temporary Industrial Rationality Bureau. Kido held the following posts from 1928 to 1945: Chief Secretary to the Lord Keeper of the Privy Seal (1930); Minister of Education in the Konoe cabinet (1937); Minister of Health and Welfare in the Konoe cabinet (1938); Minister of Home Affairs in the Hiranuma Cabinet (1939); and Lord Keeper of the Privy Seal (from 1940 to 1945); also chief confidential advisor to the Emperor and presided over the Council of Elder Statesmen. Having held the post in the office of Naidajin and later served as Lord Keeper of the Privy Seal for many years, Kido exerted much impact on changeable situations of Japanese politics. Apart from being the closest advisor to Emperor Showa, he also played a pivotal role in connecting the Emperor and the cabinet by notifying the Emperor for approval every cabinet reshuffle and change of Prime Minister.27 27  The “Naidajin” and “Lord Keeper of the Privy Seal of Japan” (sometimes referred to as “intrauterine ministers”) had important status in pre-war Japan’s politics. “Naidajin” was not a subsidiary organ of the Cabinet, but a supreme organ taking care of the Emperor and all affairs in the Cabinet; the “Lord Keeper of the Privy Seal of Japan” was not a member of the Cabinet but the mediator between the Cabinet and the Emperor, at the same time, he was also the most trusted political adviser and assistant to the Emperor. Every occurrence of a government’s and cabinet’s reorganization, when a successor to the Prime Minister and ministries had to be given “permission” by the Emperor, made him not only a key figure in Japanese politics, but also most familiar with the various changes inside. Kido held the post for many years so that his private diary cannot but be attached to importance by the court. At the time of Kido’s holding the Lord Keeper of the Privy Seal of Japan, the Cabinet happened to reorganize and the Japanese soldiers were brewing launching the Pacific war to firmly support Tojo Hideki’s coming to power. Not only did Kido not take any measures of suppression, he fueled and supported them. People said that the recommendation of Kido played a strong role in the composition of the “Adventure Cabinet”. Like Konoe, Kido was also one of the nobles manipulated by the fascist warlords and willing to be their tool.

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Kido indulged in the hobby of keeping a diary with perseverance and consistency. After the surrender of Japan, his masterpiece was found by the GHQ of the Allied Powers, and in no time transferred to the Tokyo Tribunal and preserved by the archive office. Kido had always been one of the pivots in the Japanese government through the years. As a result, his diaries were of decisive importance in getting a clear understanding of the inside history of Japan’s political evolution, such as the gradual formulation of the policy of war, the gradual escalation of the war of aggression, the personnel change of every cabinet, factions and parties’ fight both with secret and open means. Both the prosecuting party and the defense party used a part of the diary favorable to itself and presented it to the court as evidence. The court, however, did not affirm the value of his diaries as evidence without preconditions, given the fact that Kido was himself a fascist possessed by prejudice and bias of feudal aristocracy. Notwithstanding, The Diary of Marquis Kido was still the most detailed, systematic, and accurate personal record of the inside histories and evolution of Japan’s top political, economic, military, and diplomatic circles over the past two decades.28 Kimura Heitaro (58 years old): Graduating from the artillery unit of the Imperial Japanese Army Academy and the Army War College, he was once the Chief of Staff in the IJA Division. He was appointed to serve in the Japanese Siberian Intervention, and was subsequently sent as a military attaché to Germany. Upon returning to Japan, he served in the Army General Staff and concurrently taught in the Army War College. Kimura held the following posts from 1928 to 1945: Chief of Staff of the Kwangtung Army (1940), Vice War Minister in the Konoe cabinet and Tō jō cabinet (from 1941 to February 1944), member of the Supreme War Council (1943); Commander-in-Chief of the Japanese Army in Burma (1944); promoted to the General (1945). 28  In the immense The Diary of Marquis Kido, only the part of the defendant’s crimes was recorded by the court litigation, as evidence submitted to the court. The excerpts of the prosecution were unfavorable to the defendants, and the excerpts of the defense were favorable to the defendants. But those records were only a small part of the diary, and the whole diary had great value for the historical research of Japan’s political diplomacy for more than two decades. For that reason, the GHQ made100 photocopies. Those photocopies, along with the diaries, were originally shipped to Washington, and were exclusively owned by the US Army Department. Even one of the photocopies would not be given to the Allied countries who once fought with him, from which we could see the selfishness of the US government.

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Kimura used to be a capable and experienced career officer before holding the post of the Chief of Staff in the Kwangtung Army. But after being the Chief of Staff, especially after being appointed twice the Vice Minister of War, he became one member of the Japanese Fascist aggression group, and held the key to it. In the latter part of the Pacific War, he was assigned to Burma to be the Commander-in-Chief of the IJA. Therefore, he was directly held responsible for various atrocities committed in Burma, which also accounted for his hanging sentence by the International Military Tribunal for the Far East. Because Kimura was detained in Burma when Japan surrendered, he was sent away under escort to Tokyo on the eve of the International Military Tribunal for The Far East. Koiso Kuniaki (67 years old, former Prime Minister): Graduating from the Imperial Japanese Army Academy and the Army Staff College, he once fought in the Russo-Japanese War from 1904 to 1905. Later he was the leader of the Special Services Agency in Manchukuo in Northeast China and served in the General Staff and the IJA. He was also commissioned as Battalion Commander of the 2nd Infantry Regiment, command of the IJA 51st Division, and other posts. In 1926, he was promoted to be the Major General and to Lieutenant General in 1931. Koiso held the following posts from 1928 to 1945: Director of the Military Affairs Bureau of the War Ministry (1930), Vice War Minister in the Inukai cabinet (1932), Chief of Staff of the Kwantung Army (from 1932 to 1934), Command of the IJA in Korea (from 1935 to 1936), Minister of Colonial Affairs in the cabinet of Prime Minister Hiranuma Kiichiro (1939), Minister of Colonial Affairs in the Yonai cabinet (1940), Governor-General of Korea (May 1942), and Prime Minister of Japan (from July 1944 to April 1945). Koiso got the promotion to General in 1937. Koiso Kuniaki and Hata Shunroku graduated from the Imperial Japanese Army Academy in the same year. Both of them were pivots in the Japanese Fascist aggression group and fully equipped with modern military tactics. In 1925, as the monitor of the Section of Military Mapping and Surveys in General Staff, he proposed digging a tunnel between Shimonoseki and Moji-ku, and got approved by presenting his working drawings to each competent authority in person. That project had long been completed and since then he had cut a splendid figure, rising directly to a high political position over the next two decades. However, Japan was doomed to failure beyond when he succeeded Tō jō as Prime Minister.

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Consequently, he made no contribution over the last nine months in his term but only maintained the status quo. Matsui Iwane (69 years old): Graduating from the Imperial Japanese Army Academy and the Army War College, he served in the Army General Staff, and subsequently held the posts of Chief of the Intelligence Division of the Army General Staff of the Kwantung Army, Commander of the 11th Division of the Kwantung Army, and others. While making preparations for waging the Second Sino-Japanese War, Matsui had a deep and thorough understanding of geographic features of China, coastal provinces in Northeast China in particular, which helped him win the title of “China Hand”. Matsui held the following posts from 1928 to 1945: army plenipotentiary of the Japanese Imperial Army at the World Disarmament Conference in Geneva (1931); member of the Supreme War Council (March 1933); Commander-in-Chief of the Central China Area Army (CCAA) (from October 1937 to February 1938); member of the Cabinet Advisory Council (from July 1938 to January 1940); advisor to the Asia Promotion Federation (1940); advisor to the Greater East Asia Affairs Section of the Imperial Rule Assistance Association (political party) (1943), President of the Greater East Asia Development Society (1944), founded the Greater East Asia Society in 1933 and was promoted to General. Apart from mastering geographic features of China, Matsui has been characterized by his constant support of “Continental Policy” (i.e. Japan shall occupy China and the Asian continent first) and strongly advocated “Pan-Asianism” (i.e. Japan should exclusively control Asia against the depredations of Europeans and Americans) among other Japanese fascist officers. Having suffered a setback in the Battle of Shanghai after the ­outbreak of the Second Sino-Japanese War in July 1937, the IJA changed the Commander-in-Chief three times and ended up with appointing Matsui as the Commander. Matsui led the IJA going ashore from Hangzhou Bay, followed by Shanghai to capture, and finally rushed to Nanjing. After Nanjing was occupied in December 1937, Matsui connived in various atrocities against Chinese civilians committed by his subordinates, such as reckless and unbridled slaughter, rape, arson, robbery, and more. The unprecedented “Nanking Massacre” lasted six weeks with more than 10,000 civilians being killed. Denounced by the people, the Massacre once made a noise in the world, to the extent that the Japanese government was forced to assign him back to the country. When Matsui came back, he pretended to be repentant of the “Nanking Massacre” and

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claimed retirement, when in actuality he did not even stop the fascist movement of aggression.29 The International Military Tribunal for The Far East sentenced him to death mainly for his crimes committed in the Nanking Massacre. Matsuoka Yosuke (66 years olds): He grew up in Oregon, the United States of America. On Matsuoka’s return to Japan in 1902, he was accepted into the Foreign Ministry. With the aid of his fluent English, he was good at fawning over others and advocating doctrines of aggression, gradually winning fascist officers’ favors and ranking among the influential diplomats. Matsuoka held the following posts from 1928 to 1945: Chief of the Japanese delegation to the League of Nations (1933), President of the South Manchurian Railway Company (from 1935 to 1939), member of the Cabinet Advisory Councils (1940), Foreign Minister under Prime Minister Fumimaro Konoe (from July 1940 to July 1941). Matsuoka authored “Showa Restoration” (1938) and other books and theses. He also delivered speeches by advocating the Axis Powers and the war of aggression. Matsuoka was one of the most conceited among the Japanese diplomats. He once headed Japan’s delegation to the League of Nations to announce Japan’s withdrawal, and was also a major advocate of a Japanese alliance with Nazi Germany and Fascist Italy. His greatest “achievement” was signing the Soviet–Japanese Neutrality Pact. Subsequently, after Nazi German’s invasion of the Soviet Union, Matsuoka’s political career also came to an end with the downfall of Konoe’s third cabinet. At that time, he suffered a relapse of pneumonia, and spent a period of time undergoing 29  Matsui, in his defense in court, presented a photograph of the altar of the soldiers sacrificed in Nanjing, set up in his private residence, in an attempt to prove that he did repent in all sincerity. He said: “After the Nanjing Massacre, he returned to Japan, feeling selfreproached to the gods. So he was determined to withdraw from politics and lived a religious life by building an altar and running religious service day and night.” However, all those moves were completely hypocritical and artificial. His so-called altar photo showed two tablets established in the “altar”, with one reading “monument to the war dead of Japanese,” and another “monument to the war dead of Chinese”. Matsui made an equivalence between the aggressors and the victims of aggression, butchers and people being slaughtered. Besides, people offered sacrifices to gods were only limited to officers in two sides, neglecting tens of thousands of Chinese massacred, which was absurd. At the same time, it was also hypocritical for Matsui’s “retirement” for the record showed that in the early 1938 after he was ordered to return to Japan, he still headed important posts in the cabinet and in fascist groups such as the Asia Promotion Federation, the Imperial Rule Assistance Association, and others. Since 1944, he headed the President of the Greater East Asia Development Society, the most aggressive fascist group.

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rest and recuperation in his hometown. He was incurably sick while arrested, and died within four months after the start of the trial. From then on, his name was taken off the list of defendants. Minami Jirō (73 years old): Graduating from the cavalry unit of the Imperial Japanese War Academy, Minami served as Commander of the IJA 3rd Cavalry Brigade, Governor-General of Kwantung Leased Territory, Commandant of the Cavalry School, Commandant of the Imperial Japanese Army Academy, Chief of the Cavalry Section of the Ministry of War, Commander of the IJA 16th Division and Vice Chief Imperial Japanese Army General Staff. Promoted to General in 1930, he had seniority over other Japanese officers. Minami held the following posts from 1928 to 1945: Commander-in-­ Chief of the IJA in Korea (1929), War Minister in the Wakatsuki Cabinet (from April 1931 to December 1931), member of the Supreme War Council (from 1931 to 1934), Commander-in-Chief of the Kwangtung Army (from 1934 to 1936), Governor-General of Korea (from 1936 to 1942); member of the Privy Council (from 1942 to 1945), and President of the Political Association of Great Japan (Dai Nippon Seijikai) (1945). Just like Araki Sadao, Minami Jirō was a long-serving fascist officer believing in Shintoism and military aggression. Both of them became idols of the young army men. In 1931, when the Mukden Incident took place, the then Minister of the Army of Japan, instead of punishing officers who created a disturbance, he protected them in every way. He abandoned the peaceful settlement of the incident by deceiving Prime Minister Wakatsuki and suppressing fellow officers in the cabinet, and thus made the war spread to the four northeast provinces in China. Minami Jirō ’s numerous plots in Japan’s aggression of northeast China and in the establishment of Manchukuo had an influential and adverse impact. As a hypocritical Governor-General of Korea for many years, he pursued everything to its brutal end by exploiting, salving, and suppressing the Korean people, and was therefore one of the most hated governors for the Korean masses. Muto Akira (55 years old): Upon graduation from the Imperial Japanese Army Academy and the Army Staff College, he was granted the title of Captain and assigned to investigate in Europe and America and later studied army tactics in German. On his return to Japan, he served within the War Ministry and the Imperial Army General Staff Office. Muto held the following posts from 1928 to 1945: Instructor at the Military Staff College (from 1930 to 1932), Senior Officer of the Military Affairs Bureau of the War Ministry (1935–1936), section chief of the

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General Staff (1937), director of the Military Affairs Bureau of the War Ministry (from October 1939 to April 1942); Commander of the Second Guards Division in Sumatra (1943); the Chief of Staff of the 14th Area Army in the Philippines (1944). In addition, Muto served in the General Staff, attached to the Headquarters Staff, Central Army of China and later in the GHQ of the Kwantung Army after August 1937. Muto was the youngest of the 28 defendants. As an upcoming youngster, he was well known as an able and resourceful officer with a good command of tactics among fascist officers. His rank was not high, but the real power great. Having long served in the Military Affairs Bureau of the War Ministry, he was also the chief of the Bureau. The Military Affairs Bureau was a pivot in the War Ministry in Japan with an extremely important position. As the chief of the Bureau, he made important or even crucial decisions regarding historical events such as the enlargement of Japanese aggression against China, the founding of the Reorganized National Government of the Republic of China, Japan’s collusion with the Axis Powers of Germany and Italy, Japanese forcible occupation of the Annan District, the break of negotiations between Japan and the United States, the wage of Pacific War and declaration of war against Britain, the United States, and other countries. When commanding Japanese forces on Sumatra and chief of staff under General Tomoyuki Yamashita in Philippines, he condoned and instructed subordinates to commit ­countless brutal atrocities against local people.30 He was sentenced to death by the International Military Tribunal for the Far East mainly for the severity of his crimes and atrocities. Nagano Osami was 67 years old and a Japanese career naval officer. Graduating from the Imperial Japanese Naval Academy and the Japanese Naval War College, he was the Commander of a land-based heavy naval gun unit during the Russo-Japanese War from 1904 to 1905. By successfully bombarding Lüshun Harbor, he gained the reputation of an officer with the talent of command. In 1920, Nagano was a naval attaché to the United States, in which capacity he attended the Washington Naval Conference as the attaché to the Japanese naval representative—General Kato. After returning to Japan, he was the chief of the Imperial Japanese Navy General Staff and commanded the 3rd Battleship Division. Later, he 30  General Tomoyuki Yamashita was the Commander of Japanese forces in the Philippines. In 1945, he was sentenced to hang by an American military tribunal in Manila, so was Homma Masaharu, who was arrested in Japan and later extradited to the Philippines for trial.

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also commanded the 1st China Expeditionary Fleet and was Commandant of the Training Squadron. Nagano held the following posts from 1928 to 1945: Vice Chief of the Naval General Staff (1930); delegate to the Geneva Naval Conference (1931); member of the Supreme War Council (1933); Chief Delegate to the London Naval Conference (1935); Minister of the Navy in the Hirota cabinet (from March 1936 to February 1937); Commander-in-Chief of the Combined Fleet (1937); (successively) member of the Supreme War Council (1940); Chief of the Naval General Staff (from April 1941 to February 1944). Nagano was promoted to be Full Admiral in 1943 and Marshal Admiral later. Nagano was one of the most qualified career naval officers in Japan. In addition to his general participation in Japanese fascist officers’ seizing political powers and other schemes and plots of aggression against China, he shouldered great responsibility for the attack on Pearl Harbor and the initiation of the Pacific war. Like the then Prime Ministers Tō jō Hideki and Yamamoto Isoroku, the Commander of the Combined Fleet of the Imperial Japanese Navy, he was also one of the preachers who strongly advocated attacking Pearl Harbor and waging war against the United States, Britain, and other countries. Nagano died of disease during the interrogations. Since that time (January 5, 1947), his name was removed from the list of defendants. Therefore, the Judgment of the International Military Tribunal for the Far East had no record of his sentence. Oka Takasumi was 55 years old and graduated from the Imperial Japanese Naval Academy and the Japanese Naval War College. He once led the Japanese fleet to fight against Germany in World War I and was appointed to investigate in Turkey after the war. Upon returning to Japan, he served in the Navy Ministry of Japan and the Imperial Japanese Navy General Staff. Oka Takasumi held the following posts from 1928 to 1945: section chief of the General and Military Affairs Bureau of the Navy (1938), chief of the General and Military Affairs Bureau of the Navy (from 1940 to 1944), Vice Minister of the Navy in the Koiso cabinet (July 1944), and Commander-in-Chief of the Chinkau (Korea) Naval Station (from September 1944 to June 1945). Oka was promoted to be Vice Admiral. Oka Takasumi had devoted his life to the Imperial Japanese Navy, and was noted for his talent. His rank was not very high but important enough to affect decision-making of the higher authority. Just like Muto’s high

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position in the IJA, Oka also played a decisive role in the Imperial Japanese Navy. Having long served in the Military Affairs Bureau of the Navy and headed as the chief for many years, which was also an eventful period for Japan. In his term, many important military decisions were made and he was a participant in the plots of aggression, particularly the ones to attack Pearl Harbor, initiate the Pacific naval war, and occupy Western countries’ possessions in Southeast Asia. Unlike Tō jō , Yamamoto, and Nagano, it was said that Oka and his superior Shimada, Minister of the Navy proposed that full consideration should be taken of in implementing the Japanese Imperial Navy’s hazardous plans in the Pacific Ocean. He was therefore ridiculed by fascist officers as a “coward” and “incompetent”. Despite his cowardice and incompetence, he could not prevent them from yielding to and actively executing these hazardous plans of aggression. Therefore, he was responsible for the plans to some extent. Okawa Shume was 61 years old, and was the most arrogant propagandist and agitator among the Japanese fascist literati. Graduating from Tokyo Imperial University, where he had initially studied classical Indian philosophy, his interest later grew in colonialism and colonial policies. He wrote A Study of Chartered Colonisation Companies and was granted doctor of laws in 1927, when he started to devote himself to writing and speech, preaching the principle of “Great Japan” (dai Nihon shugi), Pan-­ Asianism, and the like. He founded fascist groups such as Rosokai and Yuzonsha. In 1924, Okawa founded the Nippon magazine in cooperation with Yasuoka Masahiro (President of the Institute of Golden Pheasant [Kinkei Gakuin]), advocating overthrowing the party and privileged class by allying people discontented with the circumstances to form a right-­ winger force so as to take the regime by force. Okawa held the following posts from 1928 to 1945: Director General of the East Asia Research Institute of the South Manchurian Railroad (from 1926), an organizer of the Mukden Incident, and author of A Japanese History Reader (1935) and other books and theses. He often delivered speeches and advocated war of aggression by preaching driving the white race out of Asia by force. As a zealous propagandist and agitator of racism and chauvinism, Okawa was used to instigating incidents and making trouble in politics, similar to the practice of arrogant Hashimoto Kingoro. Naturally, they were both closely bound in politics. In 1931, the failed “March Incident” and the “October Incident” were plotted and held by them (see Chap.1, Footnote 1). The two were even involved in the plot of “the Mukden

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Incident” in the same year. In 1932, the year following the “the Mukden Incident”, Okawa founded another fascist group “Jinmukai” in an attempt to overthrow the cabinet by force and to promote the Showa Restoration. The assassination of Prime Minister Inukai Tsuyoshi took place on May 15, 1932 (i.e. the notable “May 15 Incident”) was maneuvered by him behind the scenes as he supplied the munitions. With the conclusive evidence, Okawa was accused and was to be sent to jail and sentenced to 15 years of imprisonment which was later reduced to four years. In 1937, when he was discharged from prison, the Japanese aggression against China broke out, making the atmosphere in Japan suitable for Okawa to spread Pan-Asianism and fascism. At that time, Okawa was more than a notable political figure. Moreover, he served as an adviser to Prime Minister Konoe Fumimaro, and was therefore reputed to be the “core force” of Konoe’s think tank. In wartime Japan, he still presumptuously advocated his Japanese fascist theories and thoughts. Okawa many works during his life, such as A Japanese History Reader, Some issues in re-emerging Asia, A Study of the Japanese Spirit, Japan and the Japanese Way, 2600 Years of the Japanese History. These works had little academic value as they were written in the view of “Great Japan” and chauvinism, but had great significance in publicity. Okawa had initial symptoms of mental illness after the Japanese surrender, and was badly upset by Konoe’s suicide. As the illusion was shattered, he behaved strangely with his mind wandering. On the first day of the public trial, Okawa sat right behind Tō jō . After court was finished, when he was in the courtroom, he repeatedly attacked the bald head of Tō jō with his hand and shouted, “I will kill Tojo! I will kill Tojo!” Later, Okawa was diagnosed with mental illness by the medical experts designated by the court, so the court decided and announced the suspension of the trial for Okawa. He was still ill when the court pronounced judgment in November, 1948 and therefore stood no trial with punishment.31 Oshima Hiroshi was 61 years old, a graduate of the Imperial Japanese Army Academy and the Army Staff College. He was successively appointed 31  The International Military Tribunal for The Far East had declared Okawa Shumei the right to “temporarily suspend the trial” and retained the right to be tried by “the court or other court” after his rehabilitation. However, in less than two months after the judgment of the court (December 24, 1948), he was announced releases from prison, together with the last batch of Japanese Class-A war criminals in custody by the GHQ. Not only did he get away unpunished, but also was elected as a member of Congress later. The man said that it was a mockery of legal justice.

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as the assistant military attaché in the Japanese embassy to German, military attaché in the Japanese embassy to Australia, Commander of the 10th Field Artillery Regiment, and others. Oshima held the following posts from 1928 to 1945: Military Attaché in the Japanese embassy in German (1936) and Ambassador to Germany (from October 1938 to October 1939 and from February 1941 to May 1945 German’s surrender). Oshima was one of the Japanese fascist officers with the minds of diplomats. Having long served in the Japanese embassy in Germany, and heading the Ambassador to Germany twice, he worshiped Hitler’s ambition and the achievements Nazi Germany had made. Therefore, he strongly proposed to collude with the Axis Powers to carve up the territory of the whole world. He played a major role in the conclusion of the Anti-Comintern Pact with Germany in 1936 and the Tripartite Pact in 1940. Like Shiratori Toshio, the Ambassador to Italy, Oshima was a central figure advocating collusion with the Axis Powers in view of the Japanese masses. Oshima headed the Ambassador to Germany until the Japanese surrender, after which he was arrested by the Allied Powers. As one of the nine Class-A war criminals in the final arrest warrant issued by the GHQ on December 6, 1945, he voluntarily surrendered at Sugamo Prison in Tokyo. Sato Kenryo was 52 years old. Upon graduation from the Imperial Japanese Army Academy and the Army Staff College, he served in the Administration Bureau of the Ministry of War and later was appointed as the Vice Chief of Staff of South China Area Army and Vice Chief of Staff of China Expeditionary Army. Having long served as the military attaché in the Japanese embassy in the United States, his good command of knowledge about politics, the economy, military affairs, and foreign affairs of the United States helped him win the reputation of “America Hand”. Sato held the following posts from 1928 to 1945: Instructor at the Army General Staff College (1935), member of the Planning Board (from 1937 to 1938), Chief of the Military Affairs Section of the Bureau of Military Affairs in the War Ministry (from February 1941 to April 1942), and Chief of the Military Affairs Bureau of the War Ministry (from April 1942 to December 1944). Sato was promoted to be the Major General in October 1941 and Lieutenant General in March 1945. Even though Sato did not hold a high position in the IJA, he won the authorities’ favor and trust for his intelligence, resourcefulness, as well as

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sense of responsibility. In 1938, he was appointed as the representative of the War Ministry to state the mobilization bill to the Congress, threatening the senators to pass the bill. Having served twice in the Military Affairs Bureau, the most important area in the War Ministry, and headed the chief for two and a half years, he was involved in every plot and plan of the Tō jō cabinet. The plans to block traffic lines in the north of the Annan District and occupy the Annan District are all attributed to him. Shigemitsu Mamoru was 60 years old and graduated from the Law School of Tokyo Imperial University. Later, he got a first in diplomat exam and served in the Ministry of Foreign Affairs. He successively held the post of secretary at the Japanese embassy in Germany and Japanese embassy in the United Kingdom, Councilor of the Ministry of the Ministry of Foreign Affairs, Chief of the Planning Bureau, First Secretary at the Japanese embassy in China, and others. Shigemitsu held the following posts from 1928 to 1945: Minister to China (1931); Vice Foreign Minister in the Sato cabinet and Okada cabinet (from 1933 to 1936), Ambassador to the Soviet Union (from November 1936 to November 1938), Ambassador to Great Britain (from 1938 to April 1941), Ambassador to the Chinese government in Nanjing (from December 1941 to April 1943), Foreign Minister in the Tō jō cabinet (from April 1943 to July 1944), Foreign Minister in the Koiso cabinet, and Minister for Greater East Asia (from July 1944 to April 1945). Shigemitsu resumed as the Minister of Foreign Affairs in Prince Naruhiko Higashikuni’s cabinet when Japan surrendered. As one representative of Japan, he was on behalf of the Emperor of Japan and the Japanese Government, together with Umezu Yoshijiro, another representative on behalf of the GHQ. Primarily, Shigemitsu stood out conspicuously as a career diplomat because his ability and insight were far beyond the average person. In a stormy age, he could yet be regarded as a relatively stable diplomat. However, ever since the outbreak of the Japanese war of aggression against China, especially the outbreak of the Pacific War, Shigemitsu became the Minister of Foreign Affairs in the Tō jō cabinet. He became a key figure in participating and scheming Japan’s aggression plan in collusion with warlords. On January 28, 1932, when the Shanghai Incident broke out, he was the ambassador to China. On April 29 in that same year, when attending an assembly celebrating the Emperor’s birthday, he was severely injured by a bomb set by a Korean independence activist, losing one leg (Shirakawa Yoshinori, full admiral, Commander-in-Chief of the Shanghai

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Expeditionary Army was severely injured and died in the assembly). From then on, while walking, he had to rely heavily on the two walking sticks under his armpits, which was rather unsightly and inconvenient. Shimada Shigetaro was 64 years old. Together with Japanese Marshal Admiral Yamamoto Isoroku and General Shiozawa Koichi, they graduated in the same year. Upon graduation, Shimada successively held the post of the naval attaché in Italy, Instructor at the Imperial Japanese Naval Academy, Commander of the 7th Submarine Division, Chief of Staff of the IJN 3rd Fleet, and the IJN 1st Fleet and others. Shimada held the following posts from 1928 to 1945: Chief of Staff of the Combined Fleet (1930), Vice Chief of the Naval General Staff (from 1935 to 1937), Commander of the Second Fleet (December 1937), Commander of the China Fleet (May 1938), Minister of the Navy in the Tō jō cabinet (October 1941), member of the Supreme War Council (1944), and Chief of the Naval General Staff (from February 1944 to July 1944). Shimada was promoted to Full Admiral in 1940. For a long time, Shimada had held an important post in the Imperial Japanese Navy. He not only knew well all the plots and actions of the Japanese fascist officers, but was a key participant. He should hold joint responsibility as he was the Minister of the Navy in Tō jō ’s cabinet when the Pacific War broke out. However, it was said that Shimada was against the attack on Pearl Harbor and the war against the United States, he was cautious, at least. He adhered to that point during his defense in the court, which was of course futile. Given that he held such an important post for such a long period of time in the Pacific War, he could never be rejected from participating in that aggression plot, just as he had participated in the plots of Japanese aggression against China. His subjective opinions could by no means relieve him of responsibility. Shiratori Toshio was 60 years old and graduated from the Tokyo Imperial University. While serving in the Ministry of Foreign Affairs, he was appointed to the Japanese embassy in China, United Kingdom, the United States, and Germany. Later he was transferred back to Japan to serve as Director of the Information Bureau under the Foreign Ministry. Shiratori held the following posts from 1928 to 1945: Chief of the Information Bureau of the Foreign Ministry (1930), Minster to Sweden, Norway, Denmark, and Finland (1936), Ambassador to Italy (1939), Advisor to the Foreign Office (1940); and Director of the Imperial Rule Assistance Political Society. Shiratori once publicized in Modern Japan, contending the necessity to formulate Pan-Asianism through waging world war (April 16, 1941).

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As a younger officer in Japanese diplomatic circles, he was thought highly of for speaking fluent English and advocating colluding with Germany and Italy while taking a tough line to the United States and the United Kingdom. As an extreme chauvinist, in his early days, by colluding with fascist instigator Okawa Shumei, he advocated proceeding the aggression against China. He also advocated collaborating with Axis Powers while turning against the Soviet Union, the United Kingdom, and the United States. In 1931, at the time of the Mukden Incident, he was Director of the Information Bureau under the Foreign Ministry. He exerted every effort to viciously slander China in his propaganda. Later, with the help of the Ministry of the Military, he insisted on Japan’s withdrawal from the League of Nations and advocated the so-called Japanese Monroe Doctrine for Asia and Japanese Imperialism. When serving as the ambassador to Italy and as the adviser to foreign minister Matsuoka Yosuke, he exerted all his strength in counseling an anti-communist alliance between Nazi Germany, Italy, and Japan, or the “New World Order” could never be established. It was by no means coincidental for the then Japanese media to call Shiratori, Oshima Hiroshi, and him “Three Men for Axis Diplomacy”. Suzuki Teiichi was 59 years old and graduated from the Imperial Japanese Army Academy and the Army Staff College. He served in the General Staff upon graduation and successively served as its member, monitor of journalism, and others. Suzuki held the following posts from 1928 to 1945: Member of the Military Affairs Section of the War Ministry (1931), official of the Investigation Bureau of the Cabinet (1935), regimental Commander of the Fourteenth Regiment (1936), Chief of the Political Affairs Division of the China Affairs Board (from December 1938 to April 1941), Acting Director of General of the China Planning Board (1940), President of the Cabinet Planning Board and Minister without Portfolio in the Konoe cabinet and Tō jō cabinet (from April 1941 to October 1943),32 Cabinet advisor (from November 1943 to September 1944), and director of the Imperial Rule Assistance Association (1944). Suzuki was also an upcoming youngster to Japanese fascist warlords. Because in terms of qualifications and experience, he was less qualified 32  The “minister without portfolio” is a minister who is not in charge of or leading any of the departments of the government, and is also called for short as the Minister of or the Minister. He attended all cabinet meetings and decision-making as one of the cabinet members. In terms of political status, he is on equal terms with other members of the Department.

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than Araki Sadao, Minami Jirō , Hata Shunroku, Matsui Iwane, and Koiso Kuniaki. Even compared with Tō jō Hideki, Itagaki Seishirō , Umezu Yoshijiro, Doihara Kenji, and others, he was still less qualified and experienced, roughly the same as Muto Akira, Sato Kenryo, and others. However, he advanced more quickly than they did and got a higher post for he had zeal in politics and was full of resource and astuteness. In 1931, when the Mukden Incident happened, he was merely an ordinary staff member in the General Staff. He won recognition from authorities in the Ministry of the Military by firmly adhering to Japan’s withdrawal from the League of Nations. Suzuki distinguished himself after the Second Sino-Japanese War in 1937. He served in and was the acting director of the General of the China Planning Board, the central organization directing the aggression against China (see Chap.1, Footnote 2). He was the President of the Cabinet Planning Board and Minister without Portfolio in the Konoe cabinet and Tō jō cabinet around the time of the Pacific War in 1941, ­during which he made outstanding contributions to the aggression war by mobilizing the national manpower and financial resources in support of the production of military supplies. There was no doubt that Suzuki had already become an important official in the Japanese aggression group at that time. Togo Shigenori was 65 years old and a graduate of the Literature Department of Tokyo Imperial University. He was not admitted into the Ministry of Foreign Affairs until the fifth consecutive exam, but that could not prove that he was blunt in nature. After passing the exam, he soon entered the diplomatic circles, serving as Chief of the First Division of European and American Affairs Bureau in the Ministry of Foreign Affairs, First Secretary of the Japanese embassy in the United States, Councilor of the Japanese embassy in Germany, Chief of European and American Affairs Bureau in the Ministry of Foreign Affairs, and so on. Togo held the following posts from 1928 to 1945: Ambassador to Germany (October 1937), Ambassador to the Soviet Union (October 1938), Foreign Minister and Minister for Foreign Affairs in the Tō jō cabinet (from October 1941 to March 1942), and Foreign Minister and Minister of Greater East Asia in the Suzuki cabinet (April 1945). In comparison with other diplomats, Togo once was a moderate and modest diplomat. While serving as the ambassador to the Soviet Union, he once devoted himself to solving the “Nomonhan Incident” and problems of fisheries between Japan and Soviet Union without complaint. However, he should assume joint responsibility for attacking the United

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States, the United Kingdom, and other countries as the Pacific War was waged during his term when he was Prime Minister in Tō jō ’s cabinet, just as he should assume joint liability for insisting on the enlargement of Japanese aggression against China. In addition, in an extremely critical situation when the IJN was about to attack Pearl Harbor, Togo would use fraudulent means to withhold the telegraphs sent by President Roosevelt in person where he made the final call, deliberately making it irretrievable. That fully proved that apart from the fact that he should assume joint responsibility, he approved that conspiracy subjectively, and was one of the major schemers of the plot. Those events taking place later could never be used to relieve him of his responsibility for what he had done in the past, such as his indignant resignation and a long time out of the political arena due to the conflict between Tō jō and him, his proposal to make peace while serving as minister of foreign affairs in Suzuki’s cabinet on the eve of the breakdown of Japan, as well as his calling for mediation between two parties toward the Soviet Union. Togo’s wife was a German. Over the 818 days of public trial over the following two years, she came to the court every time no matter the weather. Sitting in a fixed place on the second floor, she heard the interrogation by earphone, glancing at her husband from time to time, and had a bitter smile when meeting his eyes. This is a story passed on with approval. Tō jō Hideki (former prime minister) was 63 years old and a graduate of the Imperial Japanese Army Academy and the Army Staff College. Upon graduation, he served in the War Ministry, General Staff and Headquarters of the Kwantung Army. He was a radical officer and one of the leaders in the fascist group. Tō jō held the following posts from 1928 to 1945: Head of the first Section of the General Staff (from 1931 to 1932); Chief of the Investigation Section of the Army Communications School (1932), Commander of the Military Police (Kempeitai) of the Kwantung Army (1935), Chief of Staff of the Kwantung Army (1937), Vice Minister of War in the Konoe cabinet (from May 1938 to December 1938); Director General of Military Aviation (from 1938 to 1939), War Minister in the Konoe cabinet (from July 1940 to December 1941), and Prime Minister and War Minister (from December 2, 1941, to July 1944). During that time he also concurrently served as the Minister of Home Affairs, Minister of Munitions, Chief of Staff, and others. Tō jō was promoted to General in October 1940. Tō jō was the most prominent among the 28 Japanese major war criminals in the International Military Tribunal for the Far East. Western jour-

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nals often addressed the Tokyo Trail as “the trial of Tojo and 27 other Japanese major war criminals”. That was because not only did Tō jō take part in various kinds of plots of aggression against China, but he was also the culprit waging the Pacific War. In addition, Japan’s attack on Pearl Harbor, declaration of war on the United States, a spate of violent attacks and brutal atrocities against the United States, Britain, France, The Netherlands, Australia, and other Western countries were mostly implemented by Tō jō cabinet. Naturally, he became the most hated defendant by the Western countries and was considered the most ferocious leader of the Japanese aggression group. Second, in terms of qualifications and experience, he was grudgingly a backward officer compared with Araki Sadao, Minami Jirō , or even with Hata Shunroku, Koiso Kuniaki, Matsui Iwane, and others. However, compared with them, Tō jō was undoubtedly more aggressive and adventurous in character, and the most resolute and audacious in the implementation of the aggression. Among his colleagues, Tō jō was known as the “razor,” as his sharpness of thinking and agility of action were beyond ordinary people. When the Pacific adventure failed and when Japan was on the verge of collapse, not only was he forced to relinquish power and ran out of the political arena, but also became the target hated by the Japanese people. Soon after the surrender of Japan, he was cast aside and abused by the Japanese people for his farce of a “Suicide Attempt”, which was performed on the verge of his arrest. As one of the seven criminal defendants sentenced to death by the International Military Tribunal for The Far East, he was also one of the two former Japanese Prime Ministers sentenced to death, with the other being Hirota Koki. Umezu Yoshijiro was 65 years old. Upon graduation from the Imperial Japanese Army Academy and the Army War College, he was sent to Europe for further studies in military affairs in various countries. He headed as the chief of the Military Affairs Section of the Bureau of Military Affairs in the War Ministry, Commander-in-Chief of the IJA 1st Army, and others after returning to Japan. Umezu held the following posts from 1928 to 1945: Chief of the General Affairs Department of the War Ministry (1931), Commander-in-­ Chief of the Japanese forces in Northern China (from 1934 to 1936), Vice War Minister in the Hirota cabinet, Hayashi cabinet and Konoe cabinet (from March 1936 to May 1938), Commander of the Kwantung Army and Ambassador to Manchukuo (from 1939 to 1944), and Chief of the General Staff (from July 1944 to 1945 Japan’s surrender). Umezu was promoted to General in 1940.

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Umezu was the most capable and prestigious officer among the Japanese fascists. In Japan’s previous aggressive plots, he often served as a backbone and was called “Treasure of Army” in the minds of the Japanese at that time. In his time as the Commander-in-Chief of the Japanese forces in Northern China, to realize Japan’s policy of aggression by further nibbling China’s territory away after the occupation of Northeast China, he had done everything possible to propagate for “North China autonomy” by colluding with the North China military, trying to make North China separate from China and further establish a puppet regime controlled by Japan. The notorious He–Umezu Agreement signed in 1935 was one of the results of Umezu’s coercing and bribing the humiliated Chinese government with its sovereignty forfeited.33 In 1938, Umezu also led the Japanese Army fighting in North China, committing a lot of brutal atrocities against the Chinese people. In his five years as the Commander of the Kwantung Army and the ambassador to Manchukuo, which was also the climax of the Japanese war of aggression, Umezu exhausted all brutal means to plunder and extract the wealth, blood, and sweat of people in Northeast China to maintain its evil war. For those reasons, the infamy and crimes of Umezu Yoshijiro were also well known in every household in China. In Umezu’s last but most important post (Chief of the General Staff), Japan was at the end of its resources and at its last gasp. Within less than a year, Japan announced its unconditional surrender. When the surrender ceremony was held on the Missouri warships, Umezu was one of the two representatives of Japan. He officially signed on Instrument of Surrender on behalf of the General Staff, with the other being Shigemitsu Mamoru, on behalf of the Japanese emperor and the Japanese government. In the eyes of the GHQ, Umezu and Shigemitsu Mamoru should be “taken special care of” because they were representatives of Japan’s surrender and made contributions to their credit. As a result, the arrests of the two were delayed until the eve of the prosecution, unlike the other 33  The “He–Umezu Agreement” was a typical document of Japan’s harsh interference with China’s internal affairs and violation of China’s sovereignty. It stipulated that the Chinese central government’s army must withdraw from Hebei Province; the body of Kuomintang party in Hebei Province be canceled with no activities; and all anti-Japanese behavior in Hebei Province must be prohibited. That agreement was only signed to deal with the socalled Hebei incident, while such “incidents” planned by the Japanese in North China were too numerous to mention. With regard to the content of the Agreement, we could see the extent to which Japan’s violation of China’s sovereignty and Chinese government’s submission to Japan had reached!

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Class-A war criminals, who were imprisoned for several months before the prosecution. The above are simple resumes of the 28 Japanese Class-A war criminals who were tried in the International Military Tribunal for the Far East. As noted earlier, during the lengthy trial, there were two defendants (Matsuoka Yosuke and Nagano Osami) who were sick and died; another (Okawa Shumei) had a mental illness and was suspended for trial. Thus, in May 1946, the number of the defendants tried in the court was 28, but 25 when the court sentenced.

3.4   China, United States, United Kingdom, and Soviet Union Indictments of Major Japanese War Criminals 3.4.1   Presentation and Acceptance of the Indictment As the first step taken by one party (the plaintiff), “prosecution” was an extremely important step for each case in the court. Only after the indictment was presented to and accepted by the court could the case be registered and proceedings of interrogation begun. There are two ways of interpreting in jurisprudence as well as in judicial practice on the nature of the prosecution in criminal cases. The first argued that the prosecution was part of trial proceedings of the court as it could only be effective with the “approval” of the court. While in practice, the Anglo-American courts must go through a “grand jury” trial, or a “pre-­ trial” to decide whether prosecution can be initiated, and then the court decides whether or not to accept the prosecution in accordance with the decision of the “grand jury”.34 Therefore, many people thought that the acceptance of the case would be deemed as court’s ratification of the pros34  “Grand jury” is an ancient system in Anglo-American law. Unlike the usual “jury” (or “petit jury”), which is usually composed of 12 citizens, it is composed of 12 to 24 citizens and is therefore called a “grand jury”. In some criminal cases, the court must convene a “grand jury” composed of locally impartial citizens before committing a substantive trial, and submit the case to it for “pre-trial”. In the “pre-trial”, the grand jury has the right to accept the evidence and listen to the statement of the witness and the parties, and makes the final decision whether there is considerable evidence in the case and whether it can be established as a lawsuit. Their opinions and decisions should be presented to the court by the foreman in the form of a present statement. The court then decides whether or not the case should be heard on the basis of the written statement. The system is still largely maintained

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ecution, thus a part of the proceedings of the trial. Another argument was that the court did not need to undergo a preliminary examination or pre-­ trial procedure as it was the mere acceptance of a prosecution within its jurisdiction. Therefore, prosecution should be regarded as the conduct of the party (the plaintiff, the prosecution), and had nothing to do with the court trials. In practice, courts in the “civil law system” countries generally do not have a “grand jury” or pre-trial system, the prosecution of the parties was just “accepted”. As for the prosecution of all previous interrogation, investigation, and the work of recording testimony, which can only be regarded as the preparatory work of the prosecution, had nothing to do with the court procedures. There are different views on the nature of the prosecution of the Prosecution Section of the International Military Tribunal of the Far East. For example, the Soviet jurists М.Ю.Рагинский and С.Я.Розенблит firmly believed that it was the behavior of the court, rather than that of the plaintiff’s side (prosecution), as it had been “approved” by the court.35 М.Ю.Рагинский and С.Я.Розенблит’s view was wrong because it did not match the facts. The process of the Tokyo trial’s acceptance of the prosecution actually went like this36: At 4:00 pm on April 29, 1946, all eleven judges of the International Tribunal for the Far East gathered in the council chamber of judge, with the General Secretary, Col. Walbridge, and the Secretary, Dell attending only. Soon, the Chief Procurator Keenan came in. After taking a seat, he began to speak: “I have the original Indictment signed by the chief of the counsel and each of the Allied procurators, or his proxy, which Indictment I will leave with Judge Dell.” The president Webb asked: “You propose to file that?” Mr. Keenan answered: “Yes, that is being forwarded.” The president said: That is the original. It will be read, if required, at the arraignment? At the time when the prosecutor was about leaving after finishing the above dialogue, the President said to Keenan finally: “We direct you to serve copies of the Indictment and Charter on each of the accused forthwith.”

in the Anglo-American law system, with only slight differences in the scope, authority, and organization of the grand jury due to the different legislation in each country. 35  М.Ю.Рагинский and С.Я.Розенблит: International Trial of Japanese Major War Criminals, (Chinese), World Affairs Press, pp. 91–92. 36  See Transcript of International Military Tribunal for the Far East (April 29, 1936), pp. 116–119.

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The President’s statement to the Chief Procurator was based on the Charter of the International Military Tribunal for the Far East. Paragraph A of Article 9 of the Charter stipulated as follows: “Each accused shall be furnished in adequate time for defense a copy of the indictment, including any amendment, and of this Charter, in a language understood by the accused.” The Chief Procurator Keenan understood and nodded in agreement, and then left the council chamber. The President immediately declared the meeting over.

The entire process of the indictment took less than 10 minutes. The judges did not read the indictment beforehand, let alone investigate or discuss it. How can such a simple procedure be described as the “ratification” of the court against the indictment? Theoretically, any act of the court must go through a collective discussion by the judge’s meeting where a resolution was made. The indictment of the Prosecution Section of IMTFE did not take those steps at all. On the contrary, it simply “accepted” the indictment and ordered the secretary to register and file it. It could be seen that the indictment by the IPS, as insisted by М.Ю.Рагинский and С.Я.Розенблит, was “approved” by IMTFE, which not only makes no sense in theory, but also was not in line with the facts. In fact, at the very beginning, the court was dissatisfied with the complexity of the contents and the lack of logical rigor of the indictment. For example, the crimes that the defendants were charged with in the indictment amounted to 55 counts, but was later simplified and compressed into only 10 in the verdict after the trial, with more than four-fifths being removed by the court. That was something else entirely, and there is no need to elaborate on it. The reason why it is mentioned here is that the indictment was not circumstantial evidence “approved” by the court. 3.4.2   Format and Foreword of the Indictment In the opening of the Indictment, the IPS wrote to the International Military Tribunal for the Far East: “JUDGMENT INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST INDICTMENT NO.1.” The word “NO. 1” undoubtedly showed that it was envisaged that there would be NO. 2, NO. 3, and so on after the trial of all 28 war criminals accused in the Indictment NO.1. However, in fact, as we have repeatedly pointed out beforehand, the so-called NO. 2, NO. 3, and so on indictment became a bubble, as the United States’ policy to grant asylum for Japanese war criminals had become increasingly explicit.

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The first title of the Indictment was written as follows: THE UNITED STATES OF AMERICA, THE REPUBLIC OF CHINA, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, THE UNION OF SOVIET SOCIALIST REPUBLICS, THE COMMONWEALTH OF AUSTRALIA, CANADA, THE REPUBLIC OF FRANCE, THE KINGDOM OF THE NETHERLANDS, NEW ZEALAND, INDIA, AND THE COMMONWEALTH OF THE PHILIPPINES. AGAINST ARAKI, Sadao … (A total of 28 defendants. The order is arranged in accordance with the English letter of the surname alphabetically and is omitted here).

From the head of the Indictment, the plaintiffs who headed the prosecution were undoubtedly the 11 major Allies against Japan, not the IPS or the GHQ. However, in accordance with the provisions of the Charter of the International Military Tribunal for the Far East, the Chief Procurator had the responsibility to prosecute the defendant.37 At first glance, these two viewpoints seemed to be contradictory, because the 11 countries had already listed the plaintiffs, the responsibilities of prosecution should not be devolved on the prosecutor. And, because the Chief Procurator was responsible for the prosecution, 11 countries should not be listed as the plaintiff to sue. That view was not entirely unreasonable. A more reasonable compromise was that, given the unprecedented importance of the case, the prosecution must be in the name of the 11 countries, and the prosecution responsibility of the Attorney-General was only a matter of technical support for the prosecution. The Chief Procurator should only be deemed as a chief lawyer on behalf of the plaintiff in the process of litigation, while the real plaintiffs should be the 11 Allied countries. That may be the reason why the court called the procurator as “the chief procurator of the prosecution” or “the director of the prosecution”. With regard to the content of the Indictment, the provisions of the court charter were very simple: “The indictment shall consist of a plain, concise and adequate statement of each offense charged.”38 37  See Paragraph (a) of Article 8 in the Charter of the International Military Tribunal for the Far East. 38  See Paragraph (a) of Article 9 in the Charter of the International Military Tribunal for the Far East.

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Despite some serious shortcomings, the Indictment filed by the IPS on behalf of the 11 countries to the Tokyo Tribunal was still able to meet the requirements of the Charter in general. The indictment charged the defendants a total of 50 counts. Before presenting those counts separately, it had a brief “Preamble” that gave a brief account of the political significance and characteristics of the criminal activities committed by the Japanese imperialist ruling group. The “Preamble” stated: In the years hereinafter referred to in this Indictment the internal and foreign policies of Japan were dominated and directed by a criminal militaristic clique, and such policies were the cause of serious world troubles, aggressive wars, and great damage to the interests of peace-loving peoples, as well as the interests of the Japanese people themselves. The mind of the Japanese people was systematically poisoned with harmful ideas of the alleged racial superiority of Japan over other peoples of Asia and even of the whole world. Such parliamentary institutions as existed in Japan were used as implements for widespread aggression, and a system similar to those then established by Hitler and the Nazi party in Germany and by the Fascist party in Italy was introduced. The economic and financial resources of Japan were to a large extent mobilized for war aims, to the detriment of the welfare of the Japanese people. A conspiracy between the defendants, joined in by the rulers of other aggressive countries, namely Nazi Germany and Fascist Italy, was entered into. The main object of this conspiracy was to secure the domination and exploitation by the aggressive States of the rest of the world, and to this end to commit, or encourage the commission of crimes against peace, war crimes, and crimes against humanity as defined in the Charter of this Tribunal, thus threatening and injuring the basic principles of liberty and respect for the human personality. In the promotion and accomplishment of that scheme, these defendants, taking advantage of their power and their official positions and their own personal prestige and influence, intended to and did plan, prepare, initiate, or wage aggressive war against the United States of America, the Republic of China, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, the Commonwealth of Australia, Canada, the Republic of France, the Kingdom of the Netherlands, New Zealand, India, the Commonwealth of the Philippines, and other peaceful nations, in violation of international law, as well as in violation of sacred treaty commitments, obligations and assurances; such plan contemplated and carried out the violation of recognized customs and conventions of war by murdering, maiming and ill-treating prisoners of war, civilian internees,

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and persons on the high seas, denying them adequate food, shelter, clothing, medical care, or other appropriate attention, forcing them to labor under inhumane conditions, and subjecting them to indignities; exploit to Japan’s benefit the manpower and economic resources of the vanquished nations, plundering cities, towns and villages beyond any justification of military necessity; perpetrate mass murder, rape, pillage, brigandage, torture, and other barbaric cruelties upon the helpless civilian population of the overrun countries; increase the influence and control of the military and naval groups over Japanese government officials and agencies; psychologically prepare Japanese public opinion for aggressive warfare by establishing so-called Assistance Societies, teaching nationalistic policies of expansion, disseminating war propaganda, and exercising strict control over the press and radio; set up “puppet” governments in conquered countries; conclude military alliances with Germany and Italy to enhance by military might Japan’s programme of expansion.

The last paragraph of the Indictment wrote: Therefore, the above named Nations by their undersigned representatives, duly appointed to represent their respective Governments in the investigation of the charges against and the prosecution of the Major War Criminals, pursuant to the Potsdam Declaration of the 20th July, 1945, and the Instrument of Surrender of the 2nd September, 1945, and the Charter of the Tribunal, hereby accuse as guilty, in the respects hereinafter set forth, of Crimes against Peace, War Crimes, and Crimes against Humanity, and of Common Plans or Conspiracies to commit these Crimes, all as defined in the Charter of the Tribunal, and accordingly named as Defendants in this cause and as indicated on the Counts hereinafter set out in which their names respectively appear, all the above-named individuals.

3.4.3   Fifty-Five Counts Charged Against the Defendants The Indictment presented a total of 55 counts of charges against the defendants after the preamble, some of which were filed against all the defendants, some against a number of defendants. That was the main part of the indictment. The 55 counts could be further divided into three major categories, with the first as “crimes against peace” (i.e. war of aggression); the second, “murder”; the third “other conventional war crimes and crimes against humanity”. It shall be hereby detailed as follows:

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GROUP ONE: CRIMES AGAINST PEACE (from COUNT 1 to COUNT 36) COUNT 1 All the defendants together with divers and other persons, between the 1st January, 1928 and the 2nd September, 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy, and are responsible for all acts performed by themselves or by any person in execution of such plan. The object of such plan or conspiracy was that Japan should secure the military, naval, political, and economic domination of East Asia and of the Pacific and Indian Oceans, and of all countries and islands therein and bordering thereon and for that purpose should alone or in combination with other countries having similar objects, or who could be induced or coerced to join therein, wage declared or undeclared war or wars of aggression, and war or wars in violation of international law, treaties, agreements and assurances, against any country or countries which might oppose that purpose. COUNT 2 All the Defendants, in the term as described in the COUNT 1, participated as described in the COUNT 1 in the formulation or execution of a common plan or conspiracy. The object of such plan or conspiracy was that Japan should secure the military, naval, political, and economic domination of the provinces of Liaoning, Kirin, Heilungkiang, and Jehol, being parts of the Republic of China, either directly or by establishing a separate state under the control of Japan, and for that purpose should wage declared or undeclared war or wars of aggression, and war or wars … against the Republic of China. (Note: “…” shall be deemed as the same words as that of the Count 1 and so is hereby omitted. The following with “…” shall be the same). COUNT 3 All the Defendants, between …, participated as … in the formulation or execution of a common plan or conspiracy. The object of such plan or conspiracy was … should secure the military, naval, political and economic domination of the Republic of China, and for that purpose should wage declared or undeclared war or wars of aggression, and war or wars … against the Republic of China. COUNT 4 All the Defendants, between …, participated as … in the formulation or execution of a common plan or conspiracy. The object of such plan or conspiracy was that Japan should secure the military, naval, political and economic domination of East Asia and of the Pacific and Indian Oceans, and of all countries and islands therein or bordering thereon, and for that purpose should wage declared or undeclared war or

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wars of aggression, and war or wars … against the United States of America, the British Commonwealth of Nations (which expression ­wherever used in that Indictment includes the United Kingdom of Great Britain and Northern Ireland, the Commonwealth of Australia, Canada, New Zealand, South Africa, India, Burma, the Maly States, and all other parts of the British Empire not separately represented in the League of Nations), the Republic of France, the Kingdom of the Netherlands, the Republic of China, the Republic of Portugal, the Kingdom of Thailand, the Commonwealth of the Philippines, and the Union of Soviet Socialist Republics, or such of them as might oppose that purpose. COUNT 5 All the Defendants, between …, participated as … in the formulation or execution of a common plan or conspiracy. The object of such plan or conspiracy was that Germany, Italy, and Japan should secure the military, naval, political, and economic domination of the whole world, each having special domination in its own share, the sphere of Japan covering East Asia, the Pacific and Indian Oceans and all countries and islands therein or bordering thereon, and for that purpose should mutually assist one another to wage declared or undeclared war or wars of aggression, and war or wars … against any countries which might oppose that purpose, and particularly against the United States of America, the British Commonwealth of Nations, the Republic of France, the Kingdom of the Netherlands, the Republic of China, the Republic of Portugal, the Kingdom of Thailand, the Commonwealth of the Philippines, and the Union of Soviet Socialist Republics. —The above five (1–5) COUNTs are complaints of the common conspiracy of a war of aggression against all the defendants. COUNT 6 All the Defendants together with divers and other persons, between …, planned and prepared a war of aggression and a war … against the Republic of China. COUNT 7 All the Defendants together with divers and other persons, between …, planned and prepared a war of aggression and a war … against the United States of America. COUNT 8 All the Defendants together with divers and other persons, between …, planned and prepared a war of aggression and a war … against the United Kingdom of Great Britain and Northern Ireland and all parts of the British Commonwealth of Nations not the subject of separate counts in this Indictment. COUNT 8 All the Defendants, between …, planned and prepared a war of aggression and a war … against the Commonwealth of Australia.

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COUNT 10 All the Defendants, between …, planned and prepared a war of aggression and a war … against New Zealand. COUNT 11 All the Defendants, between …, planned and prepared a war of aggression and a war … against Canada. COUNT 12 All the Defendants, between …, planned and prepared a war of aggression and a war … against India. COUNT 13 All the Defendants, between …, planned and prepared a war of aggression and a war … against the Commonwealth of the Philippines. COUNT 14 All the Defendants, between …, planned and prepared a war of aggression and a war … against the Kingdom of the Netherlands. COUNT 15 All the Defendants, between …, planned and prepared a war of aggression and a war … against the Republic of France. COUNT 16 All the Defendants, between …, planned and prepared a war of aggression and a war … against the Kingdom of Thailand. COUNT 17 All the Defendants, between …, planned and prepared a war of aggression and a war … against the Union of Soviet Socialist Republics. —The above 12 (6–17) COUNTs are complaints of the planning and preparation of a war of aggression against all the defendants. COUNT 18 The Defendants ARAKI, DOHIHARA, HASHIMOTO, HIRANUMA, ITAGAKI, KOISO, MINAMI, OHAWA, SHIGEMITSU, TŌ JŌ , and UMEZU, on or about the 18th September, 1931, initiated a war of aggression and a war in violation of international law, treaties, agreements and assurances, against the Republic of China (Note: refers to four Northeast Provinces: Liaoning Province, Jilin Province, Heilongjiang Province and Rehe Province). COUNT 19 The Defendants ARAKI, DOHIHARA, HASHIMOTO, HATA, HIRANUMA, HIROTA, HOSHINO, ITAGAKI, MAYA, KIDO, MATSUI, MUTO, SUZUKI, TŌ JŌ , and UMEZU, on or about the 7th July, 1937, initiated a war of aggression and a war … against the Republic of China (Note: refers to the whole part of China). (Note: “…” shall be deemed as the same words as that of the Count 18 and so is hereby omitted. The following with “…” shall be the same). COUNT 20 The Defendants DOHIHARA, HIRAUNMA, HIROTA, HOSHINO, KAYA, KIDO, KIMURA, MUTO, NAGANO, OKA, OSHIMA, SATO, SKIMADE, SUZUKI, TOGO, and TŌ JŌ , on or about the 7th December, 1941, initiated a war of aggression and a war … against the United States of America.

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COUNT 21 The same Defendants as in Count 20 on or about the 7th December, 1941, initiated a war of aggression and a war … against the Commonwealth of the Philippines. COUNT 22 The same Defendants as in Count 20, on or about the 7th December, 1941, initiated a war of aggression and a war … against the British Commonwealth of Nations. COUNT 23 The Defendants ARAKI, DOHIRARA, HIRANUMA, HIROTA, HOSHINO, ITAOAKI, KIDO, MATSUOKA, MUTO, SAGANO, SHIGEMITSU and TŌ JŌ , on or about the 22nd September, 1940, initiated a war of aggression and a war … against the Republic of France. COUNT 24 The same Defendants as in Count 20 on or about the 7th December, 1941, initiated a war of aggression and a war … against the Kingdom of Thailand. COUNT 25 The Defendants ARAKI, DOHIHARA, HATA, HIRANUMA, HIROTA, HOSHINO, ITAGAKI, KIDO, MATSUOKA, MATSUI, SHIGENITSU, and SUZUKI, during July and August, 1938, initiated a war of aggression and a war … by attacking the Union of Soviet Socialist Republics in the area of Lake Khasan. COUNT 26 The Defendants ARAKI, DOHIHARA, HATA, HIRANUMA, ITAGAKI, KIDO, KOISO, MATSUI, MATSUOKA, MUTO, SUZUKI, TOGO, TŌ JŌ , and UMEZU, during the summer of 1939, initiated a war of aggression and a war … by attacking the territory of the Mongolian People’s Republic in the area of the Khalkhin-Gol River. —The above nine (18–26) COUNTs are complaints of the initiation of a war of aggression against part of the defendants. COUNT 27 All the Defendants between the 18th September, 1931 and the 2nd September, 1945, waged a war of aggression and a war in violation of international law, treaties, agreements, and assurances against the Republic of China.39 COUNT 28 All the Defendants between the 7th July, 1937 and the 2nd September, 1945, waged a war of aggression and a war … against the Republic of China. (Note: “…” shall be deemed as the same words as that 39  From this count (Count 27) to Count 36, the defendants were charged with the war of aggression (waged) on various Allied countries. The previous counts (from Count 1 to Count 26) accused them of co-planning or conspiring to commit a war of aggression and their planning, preparing and initiation of a war of aggression against Allied countries. As to whether it is wise to separate the steps of the war of aggression in such a trivial way in the indictment, there will be a detailed discussion in Sect. 3.5 in this chapter.

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of the Count 27 and so is hereby omitted. The following with “…” shall be the same).40 COUNT 29 All the Defendants between the 7th December, 1941 and the 2nd September, 1945, waged a war of aggression and a war … against the United States of America. COUNT 30 All the Defendants between the 7th December, 1941 and the 2nd September, 1945, waged a war of aggression and a war … against the Commonwealth of the Philippines. COUNT 31 All the Defendants between the 7th December, 1941 and the 2nd September, 1945, waged a war of aggression and a war … against the British Commonwealth of Nations. COUNT 32 All the Defendants between the 7th December, 1941 and the 2nd September, 1945, waged a war of aggression and a war in violation of … against the Kingdom of the Netherlands. COUNT 33 The Defendants ARKI, DOHIHARA, HIRANUMA, HIROTA, HOSHINO, ITAGAKI, KIDO, MATSUCKA, MUTO, NAGANO, SHIGEMITSU, and TŌ JŌ , on and after the 22nd September, 1940, waged a war of aggression and a war … against the Republic of France. COUNT 34 All the Defendants between the 7th December, 1941 and the 2nd September, 1945, waged a war of aggression and a war … against the Kingdom of Thailand. COUNT 35 The same Defendants as in Count 25, during the summer of 1938, waged a war of aggression and a war … against the Union of Soviet Socialist Republics. COUNT 36 The same Defendants as in Count 26, during the summer of 1939, waged a war of aggression in violation of … against the Mongolian People’s Republic and the Union of Soviet Socialist Republics.41 40  The wording of this crime is almost identical to that of the preceding paragraph (Count 27), except that the date of the commencement of the crime is different. The date of the crime mentioned in the preceding paragraph is from September 18, 1931 (the “Shenyang Incident”) to September 2, 1945 (Japan’s surrender). And the date of the crime is from July 7, 1937 (the “Marco Polo Bridge Incident”) to September 2, 1945. According to the logic or common sense, the period of aggression against China from September 18, 1931, must include that from July 7, 1937. Therefore, it was not necessary to repeat it to raise this count as an independent crime as it would easily lead to confusion. The Indictment was lacking in logic rigor and the contents superfluous. 41  The lack of logical rigor in the Indictment was also manifested in the Count. The “Mongolian People’s Republic” was originally part of China’s territory. In June 1924, although it proclaimed one-sided “independence” with the aid of the Soviet Union, China’s

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—The above ten (27–36) COUNTs are complaints of the waging of a war of aggression of the defendants in all or in part. Along with the complaints of the common conspiracy (5 counts), the planning of initiation (13 counts) and the waging (9 counts) of a war of aggression, the total amounts to 36 counts, constituting the whole content of the GROUP 1 “CRIMES AGAINST PEACE” in the indictment. GROUP TWO MURDER The crime of murder was originally a type of conventional war crime, but an independent crime in the Indictment, with its latent intention to attract people’s attention. The crimes charged against the defendants were a total of 16 counts (Count 37 to Count 52) as follows: COUNT 37 The Defendants DOHIHARA, HIRANUMA, HIROTA, HOSHINO, KAYA, KIDO, KIMURA, MUTO, NAGANO, OKA, OSHIMA, SATO, SHIMADA, SUZUKI, TOGO, and TŌ JŌ , between the 1st June, 1940 and the 8th December 1941, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy, and are responsible for all acts performed by themselves or by any person in execution of such plan. The object of such plan or conspiracy was unlawfully to kill and murder the persons described below, by initiating unlawful hostilities against the United States of America, the Commonwealth of the Philippines, the British Commonwealth of Nations, the Kingdom of the Netherlands, and the Kingdom of Thailand, and unlawfully ordering, causing, and permitting the armed forces of Japan to attack the territory, ships, and airplanes of the said nations or some of them at times when Japan would be at peace with the said nations. That attack was illegal for its break of the provision of Article 1 of the Third Hague Convention, signed on October 18, 1907, concerning the commencement of the war. Every defendant listed in that count was liable for the breach or contempt of these pacts. COUNT 38 The DEFENDANTS DOHIHARA, HIRANUMA, HIROTA, HOSHIMO, KAYA, KIDO, KIMURA, MATSUOKA, MUTO, NAGANO, OKA, OSHIMA, SATO, SHIMADA, SUZUKI, formal recognition of its independence was after the “referendum” held locally in 1946. Thus, technically speaking in judicial logic, the aggression against Mongolia in 1939 could not be called as aggression against the “Mongolian People’s Republic”. It is said that, in that regard, the Chinese associate counsel once reminded the Chief Procurator of that but was unreasonably rejected to modify as the latter thought that the name was of no consideration.

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TOGO, and TŌ JŌ , between …, participated as … in the formulation of execution of a common plan or conspiracy. The object of such plan or conspiracy was unlawfully to kill and murder …, by … (Note: “…” shall be deemed as the same words as that of the Count 37 and so is hereby omitted. The following with “…” shall be the same). The said attacks were unlawful because they were breaches of the exchange of notes on the Far Eastern policy between the United States and Japan on November 30, 1908 (Articles 2 and 3), Four-Power Treaty signed by Britain, France, Japan, and the United States on December 13, 1921 (Article 1), as well as the “Pact of Paris” signed by the United Kingdom, the United States, Japan, Germany, France, Belgium, Poland, Czech Republic, and 15 other countries, also known as the “Kellogg-­ Briand Pact” (Article 1 and 2), to which most countries (48) were acceded. Each defendant listed in that count was liable for the breach or contempt of these pacts or any provisions therein.42 COUNT 39 The same Defendants as in Count 38, under the circumstances alleged in Counts 37 and 38, by ordering, causing, and permitting the armed forces of Japan to attack the territory, ships and airplanes of the United States of America, with which nation Japan was then at peace, at Pearl Harbor, Territory of Hawaii, on the 7th December, 1941, at about 0755 hours (Pearl Harbor time), unlawfully killed and murdered Admiral Kidd and about 4000 other members of the naval and military forces of the United States of America and certain civilians whose names and number are at present unknown. COUNT 40 The same Defendants as in Count 38, under the circumstances alleged in Counts 37 and 38, by ordering, causing, and permitting the armed forces of Japan to attack the territory and airplanes of the British Commonwealth of Nations, with which nations Japan was then at peace, at Kota Bahru, Kelantan, on the 8th December, 1941, at about 0025 hours (Singapore time), unlawfully killed and murdered certain members of the armed force of the British Commonwealth of Nations whose names and number are at present unknown. COUNT 41 The same Defendants as in Count 38, under the circumstances alleged in Counts 37 and 38, by ordering, causing, and permitting the armed forces of Japan to attack the territory, ships, and airplanes of the 42  The substance of the crime alleged in this count is almost the same as that charged in the previous count (Count 37). The only differences are the contents of the articles breached by the defendants, and an addition to the defendants listed in this count—Matsuoka Yosuke.

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British Commonwealth of Nations, with which nations Japan was then at peace, at Hong Kong, on the 8th December, 1941, at about 0800 hours (Hong Kong time), unlawfully killed and murdered certain members of the armed forces of the British Commonwealth of Nations, whose names and number are at present unknown. COUNT 42 The same Defendants as in Count 38, under the circumstances alleged in Counts 37 and 38, by ordering, causing, and permitting the armed forces of Japan to attach H.M.S. PETREL, a ship of the British Commonwealth of Nations, with which nations Japan was then at peace, at Shanghai on the 8th December, 1941, at about 0300 hours (Shanghai time), unlawfully killed and murdered three members of the naval forces of the British Commonwealth of Nations, whose names are at present unknown. COUNT 43 The same Defendants as in Count 38, under the circumstances alleged in Counts 37 and 38, by ordering, causing, and permitting the armed forces of Japan to attack the territory of the Commonwealth of the Philippines, with which nation Japan was then at peace, at Davao, on the 8th December, 1941, at about 1000 hours (Manila time), unlawfully killed and murdered certain members of the armed forces of the United States of America and of the armed forces and civilians of the Commonwealth of the Philippines, whose names and number are at present unknown. COUNT 44 All the Defendants together with divers and other persons between the 18th September, 1931 and the 2nd September, 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy. The object of such plan or conspiracy was to procure and permit the murder on a wholesale scale of prisoners of war, members of the armed forces of countries opposed to Japan who might lay down their arms, and civilians, who might be in the power of Japan on land or sea, in territories occupied by Japan, and crews of ships destroyed by Japanese forces, in ruthless pursuit of victory in the unlawful wars in which Japan was, or would, during the said period be engaged. COUNT 45 The Defendants ARAKI, HASHIMOTO, HATA, HIRANUMA, HIROTA, ITAGAKI, KAYA, KIDO, MATSUI, MUTO, SUZUKI, and UMEZU, on the 12th December, 1937, and succeeding days, by unlawfully ordering, causing and permitting the armed forces of Japan to attack the City of Nanking in breach of the Treaty Articles mentioned in Count 38 hereof and to slaughter the inhabitants contrary to international law, unlawfully killed and murdered many thousands of

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civilians and disarmed soldiers of the Republic of China, whose names and number are at present unknown. COUNT 46 The same Defendants as in Count 45, on the 21st October, 1938 and succeeding days, by unlawfully ordering, causing, and permitting the armed forces of Japan to attack the City of Canton …, unlawfully killed and murdered large numbers of civilians and disarmed soldiers of the Republic of China, whose names and number are at present unknown. (Note: “…” shall be deemed as the same words as that of the Count Forty-five and so is hereby omitted. The following with “…” shall be the same). COUNT 47 The same Defendants as in Count 45, prior to the 27th October, 1938, and on succeeding days, by unlawfully ordering, causing, and permitting the armed forces of Japan to attack the City of Hankow …, unlawfully killed and murdered large numbers of civilians and disarmed soldiers of the Republic of China, whose names and number are at present unknown. COUNT 48 The Defendants HATA, KIDO, KOISO, SATO, SHIGEMITSU, TŌ JŌ , and UMEZU, prior to the 18th June, 1944, and on succeeding days, by unlawfully ordering, causing, and permitting the armed forces of Japan to attack the City of Changsha…, unlawfully killed and murdered many thousands of civilians and disarmed soldiers of the Republic of China, whose names and number are at present unknown. COUNT 49 The same Defendants as in Count 48, prior to the 8th August, 1944, and on succeeding days, by unlawfully ordering, causing, and permitting the armed forces of Japan to attack the City of Hengyang in the Province of Hunan…, unlawfully killed and murdered large numbers of civilians and disarmed soldiers of the Republic of China, whose names and number are at present unknown. COUNT 50 The same Defendants as in Count 48, prior to the 10th November, 1944, and on succeeding days, by unlawfully ordering, ­causing, and permitting the armed forces of Japan to attack the Cities of Kweilin and Liuchow in the Province of Kwangsi …, unlawfully killed and murdered large numbers of civilians and disarmed soldiers of the Republic of China, whose names and number are at present unknown. COUNT 51 The Defendants ARAKI, DOHIHARA, HATA, HIRANUMA, ITAGAKI, KIDO, KOISO, MATSUI, MATSHOKA, MUTO, SUZUKI, TOGO, TŌ JŌ , and UMEZU, by ordering, causing, and permitting the armed forces of Japan to attack the territories of Mongolia and the Union of Soviet Socialist Republics, with which nations

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Japan was then at peace, in the region of the Khalkhin-Gol River in the summer of 1939, unlawfully killed and murdered certain members of the armed forces of Mongolia and the Union of Soviet Socialist Republics, whose names and number are at present unknown. COUNT 52 The Defendants ARAKI, DOHIHARA, HATA, HIRANUMA, HIROTA, HOSHINO, ITAGAKI, KIDO, MATSUOKA, MATSUI, SHIGEMITSU, SUZUKI, and TŌ JŌ , by ordering, causing, and permitting the armed forces of Japan to attack the territory of the Union of Soviet Socialist Republics, with which nation Japan was then at peace, (in the region of Lake Rhosan in the months of July and August 1938) unlawfully killed and murdered certain members of the armed forces of the Union of Soviet Socialist Republics, whose names and number are at present unknown. —The above 16 counts (Count 37 to Count 52) were prosecutions against all the defendants’ conspiracy to slaughter and some defendants’ command, instruction, and condoning the Japanese mass murder of local inhabitants and disarmed military in capturing certain cities. Those counts constitute the entire contents of the second type of crime (murder) in the Indictment. GROUP THREE: CONVENTIONAL WAR CRIMES AND CRIMES AGAINST HUMANITY COUNT 53 The Defendants, DOHIHARA, HATA, HOSHINO, ITAGAKI, KAYA, KIDO, KIMURA, KOISO, MUTO, NAGANO, OKA, OSHIMA, SATO, SHIGEMITSU, SHIMADE, SUZUKI, TOGO, TŌ JŌ , and UMEZU, together with divers and other persons, between the 7th December, 1941 and the 2nd September, 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy, and are responsible for all acts performed by themselves or by any person in execution of such plan. The object of such plan or conspiracy was to order, authorize and permit the Commanderson-Chief of the several Japanese navel and military forces in each of the several theaters of war in which Japan was then engaged, and the officials of the Japanese War Ministry, and the persons in charge of each of the camps and labor units for prisoners of war and civilian internees in territories of or occupied by Japan and the military and civil police of Japan, and their respective subordinates frequently and habitually to commit the breaches of the Laws and Customs of War, as contained in and proved by the Conventions, assurances and practices referred to in Appendix D, against the armed forces of the countries hereinafter named and against

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many thousands of prisoners of war and civilians then in the power of Japan belonging to the United States of America, the British Commonwealth of Nations, the Republic of France, the Kingdom of the Netherlands, the Commonwealth of the Philippines, the Republic of China, the Republic of Portugal and the Union of Soviet Socialist Republics, and that Government of Japan should abstain from taking adequate steps in accordance with the said Conventions and assurances and Laws and Customs of War, in order to secure observance and prevent breaches thereof. In the case of the Republic of China, the said plan or conspiracy began on the 18th September, 1931, and the following Defendants participated therein in addition to those above named: ARAKI, HASHIMOTO, HIRANUMA, HIROTA, MATSUI, MATSUOKA, MINAMI. COUNT 54 The Defendants DOHIHARA, HATA, HOSHINO, ITAGAKI, KAYA, KIDO, KIMURA, KOISO, MUTO, NAGANO, OKA, OSKIMA, SATO, SHIGEMITSU, SHIMADA, SUZUKI, TOGO, TŌ JŌ , and UMEZU, between the 7th December, 1941 and the 2nd September, 1945, ordered, authorized and permitted the same persons as mentioned in Count 53 to commit the offenses therein mentioned and thereby violated the laws of War. In the case of the Republic of China the said orders, authorities and permissions were given in a period beginning on the 18th September, 1931, and the following Defendants were responsible for the some in addition to those named above: ARAKI, HASHIMOTO, HIRANUMA, HIROTA, MATSUI, MATSUOKA, MINAMI. COUNT 55 The Defendants DOHIHARA, MATA, HOSHINO, ITAGAKI, KAYA, KIDO, KIMURA, KOISO, MUTO, NAGANO, OKA, OSHIMA, SATO, SHIGEMITSU, SHIMADA, SUZUKI, TOGO, TŌ JŌ , and UMEZU, between the 7th December, 1941 and the 2nd September, 1945, being by virtue of their respective offices responsible for securing the observance of the said Conventions and assurances and the Laws and Customs of War in respect of the armed forces in the countries hereinafter named and in respect of many thousands of prisoners of war and civilians then in power of Japan belonging to the United States of America, the British Commonwealth of Nations, the Republic of France, the Kingdom of the Mother-lands, the Commonwealth of the Philippines, the Republic of China, the Republic of Portugal and the Union of Soviet Socialist Republics, deliberately and recklessly disregarded their legal duty to take adequate stops to secure the observance and prevent breaches thereof, and thereby violated the laws of War.

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In the case of the Republic of China, the said offense began on the 18th September, 1931, and the following Defendants were responsible for the same in addition to those named above: ARAKI, HASHIMOTO, HIRANUMA, HIROTA, MATSUI, MATSUOKA, MINAMI. —The above three counts (Count 53 to Count 55) are prosecutions against the defendants of the joint plan or conspiracy to violate the laws of war, as well as against their subordinates’ indiscriminate violation of laws of war through their positive conduct (order, authorization, or permission) or negative conduct (contempt for their own legal liability and omission). Those three counts constitute the entire contents of the third category of crime (“other conventional war crimes and crimes against humanity”) in the indictment. In fact, those three counts are complaints of conventional war crimes other than murder, or complaints of crimes against humanity in the Charter. It can be said that a purely independent complaint against the defendant for crimes against humanity did not exist in the Tokyo indictment, from which we could see the chaos and imbalance of the indictment. Criticism of the Indictment will be elaborated on in the “Characteristics and Shortcomings of the Indictment” section. 3.4.4   Abstract of Five “Appendices” in the Indictment In addition to the 55 counts by the prosecution against the defendants in the text, there are five references to “appendix” after the text as an important reference for the description and enrichment of the charges. Appendix (A) was a comprehensive description of the main facts and details of the Prosecution Section in support of its accusations against the defendants in the first category (i.e. the crime against peace or crime of aggression). This appendix is divided into ten sections: SECTION 1: MILITARY AGGRESSION IN MANCHURIA, SECTION 2: MILITARY AGGRESSION IN THE REST OF CHINA, SECTION 3: ECONOMIC AGGRESSION IN CHINA AND GREATER EAST ASIA, SECTION 4: METHODS OF CORRECTION AND COERCION IN CHINA AND OTHER OCCUPIED TERRITORIES, SECTION 5: GENERAL PREPARATION FOR WAR, SECTION 6: THE ORGANIZATION OF JAPANESE POLITICS AND PUBLIC OPINION FOR WAR, SECTION 7: COLLABORATION BETWEEN JAPAN, GERMANY AND ITALY: AGGRESSION AGAINST FRENCH INDO-­CHINA AND THAILAND, SECTION 8: AGGRESSION AGAINST THE SOVIET UNION, SECTION 9: JAPAN, THE UNITED STATES OF AMERICA, THE

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COMMONWEALTH OF THE PHILIPPINES AND THE BRITISH COMMONWEALTH OF NATIONS, SECTION 10: JAPAN, THE KINGDOM OF THE NETHERLANDS AND THE REPUBLIC OF PORTUGAL. In each, the Section briefly narrated the facts of the Japanese aggression, ranging from 200 or 300 to 6700 words. Appendix (B) listed the names of pacts and articles violated by Japanese aggressors: (1) The Convention for the Pacific Settlement of International Disputes, signed at The Hague 29 July 1899 (Article 1 and Article 2), (2) The Convention for the Pacific Settlement of International Disputes, signed at the Hague 18 October 1907 (Article 1 and Article 2), (3) The Hague Convention No. III Relative to the Opening of Hostilities, signed 18 October 1907 (Article 1), (4) Agreement effected by exchange of notes between the United States and Japan, signed 30 November 1908, declaring their policy in the Far East, (5) The Convention and Final Protocol for the Suppression of the Abuse of Opium and other Drugs, signed at The Hague, 23 January 1912 and 9 July 1913, (6) The Treaty of Peace between the Allied and Associate Powers and Germany, signed at Versailles, 28 June 1919, known as the Versailles Treaty (especially Article 10, Article 12, Article 13, Article 15, Article 22 and Article 23 of the Covenant of the League of Nations), (7) The Mandate from the League of Nations pursuant to the Versailles Treaty made at Geneva 17 December 1920 (Article 3 and Article 4), (8) Treaty between the British Commonwealth or Nations. France, Japan, and the United States of America relating to their Insular possessions and Insular Dominions in the Pacific Ocean, 13 December, 1921, (9) Identic Communication made to the Netherlands Government on 4 February 1922 on behalf of the British Commonwealth of Nations and also “mutatis mutandis” on behalf of Japan and the other Powers signatory to the Quadruple Pacific Treaty of 13 December 1921, (10) Identic Communication made to the Portuguese Government on 6 February 1922 on behalf of the British Commonwealth of Nations and also “mutatis mutandis” on behalf of Japan and the other powers signatory to the Quadruple Pacific Treaty of 13 December 1921, (11) The Treaty between the United states of America, the British Commonwealth of Nations, Belgium, China, France, Italy, Japan, the Netherlands and Portugal, concluded and signed at Washington, 6 February 1922, known as the Nine-Power Treaty (Article 1, Article 2, Article 3, Article 4 and Article 7), (12) Treaty between the United States and Japan; signed at Washington 11 February 1922 (Article 2), (13) Treaty between the President of the United States of America, the President of the German Reich, His Majesty the King of the Belgians, the President of the French Republic,

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His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, His Majesty the King of Italy, His Majesty the Emperor of Japan, the President of the Republic of Poland, and the President of the Czechoslovak Republic, concluded and signed at Paris 27 August 1928, known as the Kellogg-Briand Pact and as the Pact of Paris later joined by most countries in the world (forty-eight countries) (Article 1, Article 2), (14) Declaration of Imperial Japanese Government, 27 June 1929, concerning Article I of the Kellogg-Briand Pact of 27 August 1928, (15) Conventions signed on the second Opium Convention of the International League at February 19, 1925, and the Convention relating to Narcotic Drugs, signed at Geneva 13 July 1931, (16) Treaty between Thailand and Japan concerning the continuance of friendly relations and the mutual respect of each other’s territorial integrity. Signed at Tokyo, 12 June 1940 (Article 1), (17) Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land, signed at The Hague 18 October 1907 (Article 1, Article 2), (18) Treaty of Portsmouth between Russia and Japan, signed 5 September 1905 (Article 2, Article 3, Article 4, Article 7, Article 9), (19) The Convention on Embodying Basic Rules of the Relations between Japan and the Union of Soviet Socialist Republics, signed 20 January 1925 in Peking (Article 5), (20) The Neutrality Pact between the Union of Soviet Socialist Republics and Japan, signed 13 April 1941  in Moscow (Article 1, Article 2). All of those treaties were solemnly signed and approved by the Japanese government, and were therefore absolutely binding and should have been strictly abided by Japanese authorities. However, the terms of the treaties were violated and destroyed by the defendants during the period mentioned in the indictment. Appendix (C) listed 15 statements or warranties made by the Japanese government on non-aggression or non-expansion of aggression. In the years when the defendants were in power, they broke their promises. Those warranties or statements were: 3.4.4.1 APPENDIX C 1. 5th September, 1931: That Japan had no territorial designs in Manchuria. 2. 25th November, 1931: That there was no truth in the report of a Japanese advance on Chin-chow.

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3. 22nd December, 1931: That Chinese sovereignty would be accepted and that the open door policy would be maintained. 4. 5th January, 1933: That Japan had no territorial ambitions south of the Great Wall in China. 5. 25th April, 1934: That Japan had no intention whatever of seeking special privileges in China, of encroaching upon the territorial and administrative integrity of China, or of creating difficulties for the bona fide trade of other countries with China. 6. 15th August, 1937: That Japan harbored no territorial designs on China and would spare no efforts in safeguarding foreign interest and rights in China. 7. September, 1937: That Japan had peaceful intentions and a fact of territorial designs in North China. 8. 17th February, 1939: That Japan had no territorial designs in China and that the occupation would not go beyond military necessity. 9. 26th August, 1939: That Japan had decided to abandon any further negotiations with Germany and Italy relative to closer relations under the Anti-Comintern Pact. 10. 15th April, 1940: That Japan desired status quo of the Netherlands East Indies. 11. 16th May, 1940: That Japan had no plans nor purpose to attack the Netherlands East Indies. 12. 24th March, 1941: That under no circumstances would Japan attack the United States of America, Great Britain or the Netherlands East Indies. 13. 8th July, 1941: That Japan had not so far considered the possibility of fighting the Union of Soviet Socialist Republics. 14. 10th July, 1941: That Japan contemplated no action against French Indo-China. 15. 5th December, 1941: That troop movements in French Indo-­ China were precautionary measures. Appendix (D) excerpted from the important provisions of the international conventions on acts of combat and the promise of Japan to ensure compliance with those provisions. That appendix was used to support the accusation of the defendant’s third type of crime (conventional war crimes and crimes against humanity). The appendix included: (1) some articles from Convention No. 4 at the Hague on the October 18, 1907, and

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Convention No. 10. Japan was a party to the said two Conventions, together with 39 other nations, therefore, it was binding upon Japan. (2) The International Convention relative to the Treatment of Prisoners of War, created in Geneva, on the 27th July, 1929. It was signed on the said date by or on behalf of 47 nations, and thus became strong evidence for some established principles of international law commonly recognized and abided by. Although Japan did not ratify the said Convention, it became binding upon her for it was signed on the said date by or on behalf of 47 nations, including Japan. Additionally, a communication dated the 29th January, 1942 addressed to the Swiss Minister and a communication dated on the 30th January, 1942, addressed to the Argentine Minister contained the statement that Japan will apply the conditions of the Convention. Therefore, the provisions of that Convention were binding upon Japan. (3) The International Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, created in Geneva on the 27th July, 1929, (known as and hereinafter called ‘the Red Cross Convention’). Japan was a party to the said Convention, together with over 40 other nations. It stated again and again that it would “strictly apply” the Convention in wartime (from January 24, 1942, to February 13, 1942). The said three Conventions were signed, ratified, and entered into by most countries in the world at that time, and thus correctly embodied and established the principles of international law. In light of certain important articles, the latter part of this Appendix briefly enumerated and described the indiscriminate breaches of and the brutal destruction of the Convention. The acts constitute the background material and general outline of the third category of crimes against the defendants (conventional war crimes and crimes against humanity) in the Indictment. Appendix (E) recorded the respective duties of the 28 defendants in the Japanese government from 1928 to 1945 (the period accused in the indictment), thereby demonstrating their personal responsibility during the war of aggression in Japan. In the third section of this chapter, “Selection of, and Bibliographic Guide to, 28 Defendant Criminals”, the experience and titles of the defendants were detailed and so they are omitted. A short “Preamble”, along with 55 counts and five references to “appendix” was the entire content of the indictment filed by the IPS to the International Military Tribunal for the Far East, accusing 28 Japanese major war criminals. The following is a discussion of the characteristics and shortcomings of that indictment.

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3.5   Characteristics and Defects of the Indictment The Indictment filed by the IPS to the Tokyo Tribunal against Japanese major war criminals had one prominent feature, which was also its most fundamental defect: the charges against the defendants (a total of 55 counts) were too complicated and trivial. Lacking in logical rigor, the indictment was difficult to understand with different counts overlapping and conflicting with each other. Compared with the indictment filed by the Nuremberg Attorney’s Office of the German major war criminals, the outline of which was simple to understand, it can be said to be the biggest drawback of the Tokyo indictment. We will go into detail on that drawback. Here we first cite the two minor differences between the two indictments. First, the accused defendants in the Tokyo indictment were all criminals detained in Tokyo, and were tried personally in the court, with no trial by default, like Bormann in the Nuremberg Trial. Although there was no express provision in the Charter of the International Military Tribunal and Charter of the International Military Tribunal for the Far East, that is, there was neither provision on the allowance of trial by default, nor provision on the prohibition on that practice. But the practice of the two indictments varied. The Nuremberg Trail put a war criminal who had not been arrested in the case of prosecution, which led to trial by default, while the Tokyo tribunal did not do so. In Tokyo, the accused war criminals were all present at court for trial since the first day of the trial. Indeed, long after Japan’s surrender, the defendants Muto, Sato, Kimura, and Itagaki were all detained by the Allies as prisoners of war for their command on overseas battlefields. But before the formal interrogation of the Tokyo Trial, they were all escorted to Tokyo. Therefore, defendants in the Tokyo Trial (except those who died or who were mentally ill) were tried at court in all the courses of interrogation. In comparison, defendant Bormann in the Nuremberg Tribunal remained missing until the judgment was rendered so that the court had but to make a judgment by default.43

43  Martin Bormann was one of the 22 major German war criminals sentenced by the Nuremberg Trial. The number of the German major war criminals accused by the Nuremberg International Procuratorial Committee to the Nuremberg International Military Court was originally 24. Later, Robert and Gustav Krupp were freed of trial as the former committed suicide in prison and the latter was diagnosed with psychosis, so the final number of defendants tried on September 30, 1946, was 22. During the course of the trial, Bormann had fled

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Another difference was that the Nuremberg indictment, in addition to accusing 22 of the leading German war criminals, also asked the court to review a number of important Nazi organizations (bodies) during the trial and to adjudicate and declare them as “criminal organizations”. The Tokyo indictment, however, did not raise such a request. It did not prosecute any Japanese fascist organizations or groups as the object of crime, which was a distinct difference between these two indictments. The indictment itself, or different opinions held by the IPS, should not be to blame for it, but the various provisions of the two Charters led to the difference. Article 9 of the Charter of the International Military Tribunal provided that “At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.” That was a principled rule, according to which the court had the power to declare any group or organization involved in the crime of the defendant as a criminal group or criminal organization. In consideration of the proceedings of the declaration, Article 9 of the Charter of the International Military Tribunal further stipulated that “After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.” As to the nature of the declaration, the Charter further provided it as a decisive one, so that no member of the organization could raise any objection of it in the following criminal procedures. Article 10 of the Charter clearly stated that “In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the crimioutside and the police had failed to arrest him. However, the court did not stop his litigation (his defense was carried out by a court-appointed lawyer), and sentenced him to hang in “absent trial”. His whereabouts are still unknown. According to Time magazine published in the United States on December 25, 1964, he may still be alive in the world, living a fugitive life.

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nal nature of the group or organization is considered proved and shall not be questioned.” It could be deducted that the IPS not only accused 22 German leading war criminals including Göring, but a number of groups, organizations, or institutions that were responsible for planning and enforcing aggression, such as Leadership corps of the Nazi Party, Reich Cabinet, General Staff, High Command, SS, Gestapo, and others.44 However, the IPS in the Tokyo Trial had neither such a task nor such delegated power to do so as it was not authorized by the Charter. Therefore, the accused in the Tokyo indictment were only contained to those defendants but not to those fascist militarist groups or organizations they took charge of or participated in. That was the task of the court, which was also to determine the defendant’s personal crime; it was not authorized or required to declare any group or organization as a “criminal group”.45 That mentioned above is the difference between the Tokyo indictment and the Nuremberg indictment; the former did not charge the absent defendant and the criminal organization. In Nuremberg Trial, the crimes of defendants charged by the IPS were only the following 4: (1) Participation in a common plan or conspiracy for the war of aggression, (2) Participation in the war of aggression, (3) War 44  In the Judgment of the Nuremberg Trial, the organizations, groups, or organs called the “criminals” as: Leadership corps of the Nazi Party, Gestapo and SD, SS, SA. Non-criminals included: Reich Cabinet, General Staff, High Command. Judges from the Soviet Union had different opinions that Reich Cabinet, General Staff, High Command should be announced as the criminal organizations and groups. That opinion wasn’t read out openly in the court while pronouncing judgment, but was attached and made public after the judgment as a dissenting opinion. See Judgment of German Major War Criminals of International Military Tribunal, World Affairs Press, Chinese version, pp. 250–262. 45  Neither was the International Military Tribunal For The Far East empowered, nor was it required, to declare any organization or group as a “criminal organization” or “criminal group”, the court examined and studied some organizations and groups of Japanese fascist militarism and advocating the war of aggression, such as the Black Dragon, Sakurakai (Cherry Blossom Society), Kokuhonsha (the National Foundation Society), Kokubu, Great Japan Youth Party, Great Japan Political Association (Dai Nippon Seijikai), Imperial Rule Assistance Association, and so on. The Prosecution provided many materials on those organizations and the aim, organization, and activities of those organizations or groups, as well as the relationship between individual defendants and the groups. However, the purpose of the Tribunal’s review and research was not to determine or declare them as criminal organizations or criminal groups, but to ascertain the role of the defendants in those criminal therein, and how they use such organizations or groups to carry out their criminal activities.

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Crimes in violation of the laws or customs of war, (4) Crimes against Humanity. Such a simple and straightforward arrangement not only made it more practical for the prosecution to provide evidence, but also helped the court to sentence more accurately.46 However, the number of the counts listed in the Tokyo indictment were as high as 55. Those counts contradicted and conflicted with each other, lacking in rigorous logic, which inevitably stirred up a sense of confusion and chaos in people’s minds. For example, as one of the conventional war crimes, the crime of homicide was not a separate category in the three categories of crimes enumerated in the Charter of the Tribunal, but was classified as a lone category in the indictment with 16 counts (from 37 to 52). That was not only inconsistent with the provisions of the Charter, but also made the two major crimes lose balance in terms of content and number, other than the crime of aggression (conventional war crimes and crimes against humanity). The number of those two major crimes was only three (from count 53 to 55). Indeed, it was true that massive slaughter and slaughter of a certain nature can sometimes be prosecuted as the violation of humanitarian law, but that was not the case in the indictment. Instead, all the homicides were classified as one category, without distinction. Additionally, the number of Crimes against Peace (crime of aggression) charged against the defendants in the indictment was as high as 36, almost two thirds of all the counts of crime. It made a rigid division of the steps to initiate a war of aggression: 5 counts of conspiracy of a war of a­ ggression (counts 1–5); 12 counts of planning and preparing a war of aggression against some countries (counts 6–17); 9 counts of initiating a war of aggression against some countries (counts 18–26); 10 counts of waging a war of aggression against some countries (counts 27–36). True, the intention of the Tokyo IPS was nothing more than that it seemed to be very appalling and took great patience to enumerate and categorize in detail the steps of aggression taken by the Allied Powers, because the aggression was the most dreadful crime of the defendants. However, they did not realize that that would not only increase the difficulties in providing evidence to support so many charges, but also made it less justifiable, both in theory and in logic. For example, the first count was that the defendants are involved in the formulation of a large, ambitious plan to dominate Asia 46   See the judgment of Göring in Judgment of German Major War Criminals of International Military Tribunal (Chinese), World Affairs Press, pp. 139–144.

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and the Pacific area and carve up the entire world, which was a general and comprehensive plan or conspiracy. While the second, third, fourth, and fifth counts charged plans of aggression or conspiracy for some countries. The last four counts seemed to be superfluous, as the whole included part or all of the individuals. The same applied to Count 6 to Count 17, which charged the defendants with planning and preparing a war of aggression against some countries; Count 18 to Count 26 initiating a war of aggression against some countries; Count 27 to Count 36 waging a war of aggression against some countries, that is, engaging in armed attack in practice. Such a rigid division was not very reasonable as the implementation of war definitely included steps of planning, preparation, and initiation, particularly in the war of aggression. There had been no war of aggression waged without preparation and initiation throughout history. The indictment not only accused the defendants of the common conspiracy of aggression, but also accused them of the initiation of the war (i.e. armed attack). While at the same time, it also took apart steps of war as many counts to charge, such as planning, preparing, and initiating before waging the war against each country, which was only Count 36 (waging of a war of aggression). As to accusations against initiating war of aggression within 10 counts from Count 27 to Count 36, there were three counts that were both illogical and unnecessary. For example, in the Count 27, the defendants were charged with a war of aggression against China from September 18, 1931, to September 2, 1945 (altogether 14 years), while in Count 28, the prosecution was still that defendants’ implementation of a war of aggression against China. The only difference in that count was “between the 7th July, 1937 and…” with the other wording exactly the same. According to the logic and common sense, the war of aggression against China from September 18, 1931, must include the war from July 7, 1937. It was totally unnecessary and illogical to list it as two separate counts. And the time charged in both Count 29 and Count 30 was from December 7, 1941, to September 2, 1945, the day Japan surrendered, with the former charging the defendants with a war of aggression against the United States, and the latter against the Philippines. It was illogical that the indictment listed it as two different prosecutions for the Philippines was not officially independent as it was part of the United States before Japan’s surrender. Count 34 is another example; the defendants charged had waged a war of aggression against Thailand (Siam). During the entire World War II, Thailand stood on the Japanese side, playing a role of accomplice. It was

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neither logical nor in line with the facts of accusing Japan’s war of aggression against Thailand.47 —In view of the above, the Tokyo indictment charged the defendants with 55 counts, with the majority unnecessary to list. Perhaps in the view of the Tokyo IPS, it showed ingenuity and spared no details to draft the indictment, but ended up in a fruitless attempt to the contrary. The shortcomings of the indictment were indeed serious and fundamental in terms of logical rigor. It was such difficult business for the International Military Tribunal for the Far East to cope with a complex 55 counts in the indictment. During the course of the trial, the evidence provided by the IPS did not adequately support each of the counts. Generally speaking, the evidence was abundant, but not enough to separate all the evidence to correspond with each of the 55 counts. As the interrogation process evolved, the courts were increasingly pressed about facing that difficult task. But because the indictment was “accepted” by the court, naturally it was not convenient to order the IPS to modify it during the trial. The only way was by the court itself to simplify the 55 cumbersome counts as much as possible, so that it would not be that complicated to understand, although not as simple as that of the Nuremberg indictment, which had only four counts listed. After a period of consideration and discussion, the judges decided to simplify the 55 counts by reducing them to 10, cutting 45 counts. They believed that the quality of the trail would not be necessarily affected by doing so. At first, the court’s intention to deal with the indictment was only the judge’s internal decision. They made it as a standard or norm for the trial of the defendant’s criminal punishment, and did not intend to announce it during the trial. 47  Immediately after the Pacific War, Thailand and Japan signed the “Alliance Treaty”. The agreement was established in Bangkok on December 21, 1941, and entered into force on the same date. Article 2 of the Treaty provides that “in the event of an armed conflict with one or several third States in Japan or Thailand, Thailand or Japan shall immediately stand on the other side as its allies and use it for all political, economic and military means”. Article 4 states that “Japan and Thailand guarantee each other in the case of joint operations that no truce or conciliation is concluded unless a fully agreed agreement is reached.” Before Japan surrendered, Thailand was always an ally of Japan. Only after the formal surrender of Japan on September 11, 1945, did Thailand address a note to Japan and inform it to abolish the treaty as “the treaty is not in accord with the world’s peaceful situation”. See International Treaty Collection (1934–1944), World Affairs Press, pp. 341–342.

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However, in the final judgment, the court declared the reduction of 55 counts to 10, and explained in a mild tone why the court considered it unnecessary to reserve those 45 counts. The following are the ten counts preserved in the judgment by the court48: (1) COUNT 1 accused the common conspiracy of all the defendants. The object of such plan or conspiracy was that Japan should secure the military, naval, political, and economic domination of East Asia and of the Pacific and Indian Oceans, and of all countries and islands therein and bordering thereon. (2) COUNT 27 accused that all the Defendants waged a war of aggression against the Republic of China. (3) COUNT 29 accused that all the Defendants waged a war of aggression against the United States of America. (4) COUNT 31 accused that all the Defendants between the 7th December, 1941 and the 2nd September, 1945, waged a war of aggression against the British Commonwealth of Nations (including the United Kingdom, Australia, Canada, New Zealand). (5) COUNT 32 accused that all the Defendants waged a war of aggression against the Kingdom of the Netherlands. (6) COUNT 33 accused the Defendants ARKI, DOHIHARA, HIRANUMA, HIROTA, HOSHINO, ITAGAKI, KIDO, MATSUCKA, MUTO, NAGANO, SHIGEMITSU, and TŌ JŌ , on and after the 22nd September, 1940, waged a war of aggression against the Republic of France. (7) COUNT 35 accused the same 13 Defendants as in Count 25, ARAKI, DOHIHARA, HATA, HIRANUMA, HIROTA, HOSHINO, ITAGAKI, KIDO, MATSUOKA, MATSUI, SHIGENITSU, SUZUKI, and TOGO, waged a war of aggression against the Union of Soviet Socialist Republics. (8) COUNT 36 accused the same Defendants as in Count 26, ARAKI, DOHIHARA, HATA, HIRANUMA, ITAGAKI, KIDO, KOISO, MATSUI, MATSUOKA, MUTO, SUZUKI, TOGO, 48  The full text of the ten counts can be found in Sect. 3.4 of this chapter. No pains were spared to repeat and list their contents separately herein since they are the only items that the court has recognized and preserved and had a significant role in both the trial and the judgment.

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TŌ JŌ , and UMEZU waged a war of aggression against the Mongolian People’s Republic and the Union of Soviet Socialist Republics. (9) COUNT 54 accused the Defendants DOHIHARA, HATA, HOSHINO, ITAGAKI, KAYA, KIDO, KIMURA, KOISO, MUTO, NAGANO, OKA, OSKIMA, SATO, SHIGEMITSU, SHIMADA, SUZUKI, TOGO, TŌ JŌ , and UMEZU, after the Pacific War in 1941, ordered, authorized and permitted the Commanders-­on-Chief of the several Japanese naval and military forces in each of the several theaters of war in which Japan was then engaged, and the officials of the Japanese War Ministry, and the persons in charge of each of the camps and labor units for prisoners of war and civilian internees in territories of or occupied by Japan and the military and civil police of Japan, and their respective subordinates to commit the offenses therein mentioned and thereby violated the atrocities in the international conventions and international law. In the case of the Republic of China the said orders, authorities and permissions were given in a period beginning from the Mukden Incident in 1931, and the following Defendants were responsible for the same in addition to those named above: ARAKI, HASHIMOTO, HIRANUMA, HIROTA, MATSUI, MATSUOKA, MINAMI. (10) COUNT 55 accused the Defendants DOHIHARA, MATA, HOSHINO, ITAGAKI, KAYA, KIDO, KIMURA, KOISO, MUTO, NAGANO, OKA, OSHIMA, SATO, SHIGEMITSU, SHIMADA, SUZUKI, TOGO, TŌ JŌ , and UMEZU, after the Pacific War in 1941, being by virtue of their respective offices responsible for securing the observance of the said Conventions and assurances and the Laws and Customs of War in respect of the armed forces in the countries hereinafter named and in respect of many prisoners of war and civilians, deliberately and recklessly disregarded their legal duty to take adequate measures to secure the observance and prevent breaches thereof, and thereby violated the laws of War. In the case of the Republic of China, the said offense began from the Mukden Incident in 1931, and the following Defendants were responsible for the same in addition to those named above: ARAKI, HASHIMOTO, HIRANUMA, HIROTA, MATSUI, MATSUOKA, MINAMI.

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The above 10 counts were saved by the court after careful consideration of the overall 55 counts in the indictment. Eight of these ten counts were crimes against peace (crime of aggression), with the other two related to conventional war crimes (wars in violation of the laws of war) and crimes against humanity. In fact, the last two counts were crimes that violate the laws of war, with one (Count 54) being a positive act of the defendant in his duty, that is, to order, authorize, or permit the subordinates of a crime in breach of laws of war, another (Count 55) the negative act or omission of the defendant in his duty, that is, despite their duties to ensure that the laws and regulations of the war obeyed, they had deliberately defied that responsibility or obligation by indulging their subordinates in a laissez-­ faire approach to commit crimes in violation of the laws of the war, without taking any appropriate steps or measures to prevent it. As for the crimes against humanity, because it was not listed in the indictment as an independent crime, the court could not adopt an original approach to make it as a separate charge. Thus, although the Tokyo Charter granted the courts to try the crimes against humanity, in practice, however, the court did not exercise that power because the IPS did not make any apparent or special complaint against the defendant in respect to such crime, despite their frequent use of “against humanity” when accusing the defendants in submitting evidence and debating. The court held that it would be sufficient to retain only Count 54 (positive act) and Count 55 (negative act or non-performance) with respect to the conventional war crimes of the defendants. As for the 16 counts (from Count 37 to Count 42) listed as “homicide” in the indictment, the court considered that all of them could be included in the two counts and it was unnecessary to enumerate the names, locations, and dates separately. On the contrary, the court would run a risk as it may have left out many important counts by doing so, and it would also be extremely difficult to submit evidence. With regard to the accusation of the crime against peace (crime of aggression), the indictment contained as many as 36 counts, which had been compressed afterward into only eight counts: the first count was joint plan or conspiracy of the Japanese aggression, counts 27, 29, 31, 32, 33, 35, and 36 (total of 7 counts) were practice or waging of a war of aggression China, the United States, the British Commonwealth of Nations, the Netherlands, France, the Soviet Union, and Mongolia. The court considered that the 8 counts in the indictment could summarize the overall 36 counts of the crime of aggression without omitting anything, as

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the joint plan or conspiracy necessarily included partial or individual plan or conspiracy. However, the steps of planning, preparing, and initiating of the war (i.e. actual combat) must be included in the waging of war. To take every step of a country’s war as a separate project to complain would not only cause logical confusion, but would also pose difficulty in the submission of evidence. Overall, the court concluded that it would be necessary to include only 8 counts in respect to the crimes of the defendants, with the remaining 28 being superfluous. Fifty-five counts enumerated in the indictment were streamlined into only ten, which were the basis or grounds on which the court was based during all stages of the trial process and the standard of norm in the formal sentencing of the defendants. As has been pointed out previously, although it was more complicated than the four simple prosecutions in the Nuremberg Trial, it was much simpler than convicting the defendants of crimes by various counts listed in the original indictment. It must be pointed out again that although the court had been disgusted with the complex, cumbersome, and insecure counts listed in the indictment at the time of the interrogation, it intended to compress them from the start to ensure the smoothness of the trial. The decision to preserve only 10 was finally announced, in which the court explained the reason why those 45 counts had been eliminated.49 The court’s instructions were made in a very modest and moderate tone in order to not destroy the dignity of the IPS. It did not directly blame the triviality of the prosecutions in the indictment, or expressly pointed out its illogicality. In fact, there was no doubt that the triviality and lack of logical rigor were the biggest drawbacks of the Tokyo indictment.

49  With regard to the court’s refinement of the 55 counts into 10 in the indictment and the specific reasons as to why the 45 counts were deleted, see the translation of the Judgement of the International Military Tribunal for the Far East, 1950s Press, pp. 18–21.

CHAPTER 4

Trial Proceedings of the International Military Tribunal for the Far East

4.1   Basic Provisions on Trial Proceedings in the Tokyo Charter The trial proceedings of the International Military Tribunal for the Far East (i.e. the so-called proceedings) were rather complicated and cumbersome. The complexity of the trial proceedings was undoubtedly one of the main reasons why the trial lasted such a long time. As for the proceedings, in addition to the basic provisions of the Tokyo Charter of the Tribunal, there were additional provisions in the “rules of proceedings” established by the Tribunal. In this section, we are only going to outline the provisions of the Tokyo Charter within the realms of the trial, that is, the provisions of each step of the trial. As for the provision and adoption of exhibits, the appearance of witnesses and the hearing of witnesses, as well as other provisions of the proceedings, will be elaborated in the following sections. Article 15 of the Tokyo Charter. Course of Trial Proceedings. The proceedings at the Trial will take the following course: (a) The indictment will be read in court unless the reading is waived by all accused.1 1  In accordance with Article 1 Item (a) of “rules of procedure” provided in the Charter of International Military Tribunal for the Far East, a copy of the indictment should be delivered

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(b) The Tribunal will ask each accused whether he pleads “guilty” or “not guilty”. (c) The prosecution and each accused (represented by the counsel for the accused if he has one) may make a concise opening statement. (d) The prosecution and defense may offer evidence and the admissibility of the same shall be determined by the Tribunal. (e) The prosecution and each accused (represented by the counsel for the accused if he has one) may examine each witness and each accused who gives testimony. (f) The accused (represented by the counsel for the accused if he has one) may address the Tribunal. (g) The prosecution may address the Tribunal. (h) The Tribunal will deliver judgment and pronounce sentence. In accordance with that provision of the Tokyo Charter, the trial was divided into eight steps, from the indictment to the judgment. The trial steps adopted by the International Tribunal for the Far East were similar to the steps of the Nuremberg International Tribunal. The biggest difference was that in Nuremberg, every defendant had a right to make a final statement, which is “a closing statement”, while in Tokyo the prosecutor, rather than the defendant, had the right to make a final statement. In other words, at the end of the proceedings, the final speaker in Tokyo was the prosecutor, while in Nuremberg it was the defendant. Additionally, the process for the proceedings stipulated in the two Charters was virtually the same.2 The actual trials of International Military Tribunal for the Far East were generally carried out in accordance with the provisions noted within the steps of the Tokyo Charter, although some details were slightly flexible. The actual process of the full trial is made up of the following stages: (1) The Indictment shall be read in court. (2) The Tribunal shall ask each Defendant whether he pleads “guilty” or “not guilty”.3 to the defendants 14 days before the court publicly reads the indictment, and it should be translated into the language the accused can understand (Japanese). 2  See Article 24 of the Charter of the Nuremberg International Military Tribunal. 3  This step is called “arraignment” in the common law system, which is the first and most important step in a criminal case. After the defendant hears the indictment read by the prosecutor, the court will ask him if he pleads guilty or not. If he pleads “guilty”, then he gives up the right to defense. At this point, the court may terminate the proceedings, and pronounce the sentence in accordance with the crime listed in the indictment. If he pleads “not guilty”, the trial can be carried out in accordance with regular proceedings. All 28 defendants who were tried in the Tribunal for the Far East pleaded “not guilty” at that time.

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(3) The prosecution shall make an opening statement.4 (4) The prosecution may offer evidence (exhibits, witnesses). (This was a long, tedious stage which took more than six months. The prosecution’s evidence was divided into several parts. Before each part of the evidence was produced, an assistant prosecutor gave a general introduction stating what the prosecution intended to prove and which exhibits and witnesses the prosecution intended to provide during that part. The defendant had the right to protest when an exhibit was presented. After witness statements, the defendant had the right to cross examine the witness.) (5) The defense may offer evidence (exhibits, witnesses). (This was also a tedious, cumbersome stage, which took more than ten months. The defense evidence was to counterattack charges against the accused and the prosecution’s evidence. It was also divided into several parts. At the beginning, a defense lawyer made a general summary. Before each part of the evidence was presented, another defense lawyer made a general introduction stating what the defense intended to disprove and which exhibits and witnesses the defense intended to provide during that part. The prosecution had the right to protest when an exhibit was presented. After witness statements, the prosecution had the right to cross examine the witness.) (6) The prosecution shall rebut the evidence presented by the defense (at this stage, the prosecution may offer new evidence to rebut the evidence provided by the defense). (7) The defense shall rebut the evidence presented by the prosecution (at this stage, the defense may still offer new evidence, but only to relate to the rebutting evidence offered by the prosecution at the previous stage). (8) The Prosecution shall address the court. (9) The defense addressed the Tribunal. (10) The chief procurator shall make a closing statement. (11) The Tribunal shall deliver judgment and pronounce sentence.

4  In the opening statement, the prosecutor makes a general introduction regarding the purpose and main points of the prosecution.

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From what has been said, the court’s actual trial was essentially in accordance with the Charter of the Tribunal, although there were subtle discrepancies for the sake of convenience of the trial. After the chief prosecutor had made the “final statement”, the defendant counsels asked the Tribunal for a last opportunity to make a defense, the tribunal flatly refused because it was in violation of the Tokyo Charter and was not necessary. Therefore, it is evident that the Tribunal abided by the Tokyo Charter to the maximum extent. However, because the Tokyo Charter was drafted by people from the common law system, and the majority of members of the Tribunal were accustomed to the common law trial proceedings, the trial proceedings had been unable to eradicate the influence of the Anglo-American law system throughout the entire trial. For example, although it was provided in Article 12 “Conduct of Trial” that “The Tribunal shall: (a) Confine the trial strictly to an expeditious hearing of the issues raised by the charges” and “(b) Take strict measures to prevent any action which would cause any unreasonable delay and rule out irrelevant issues and statements of any kind whatsoever”, however, in fact, the Tribunal did not do so resolutely, but rather to a large extent allowed lawyers (mainly American lawyers) to endlessly make use of the loopholes in the complex and cumbersome rules of procedure of the common law system. This phenomenon is particularly manifested in the two sections “the presentation and adoption of exhibits” and “the appearance and hearing of witnesses”. As is well known, the rule of evidence in the common law system is one of the most complex, the most cumbersome, and the most formal.

4.2   Procedures for the Presentation and Adoption of Exhibits 4.2.1   Types and Nature of Exhibits The International Military Tribunal for the Far East adhered to “evidentialism”, which means the final judgment had to be based on the evidence formally adopted by the Tribunal. Therefore, the most important thing for both parties is to collect and submit to the Tribunal the evidence in favor of their own side, and promote its adoption. That is the most important work, as well as the most onerous and the most difficult, for both the prosecutor and the defense counsel.

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Throughout the trial, the court spent two-thirds of all hours of the total trial time on hearing and taking evidence (including exhibits and witnesses), which took about 16 months. Some of the most intense ­arguments from both parties took place during the stage of hearing the evidence. The evidence generally can be divided into two types: exhibits and witnesses. The complex process for providing witnesses, testifying in court, and hearing will be explained in the following section. This section deals with some of the measures taken by the Tribunal for the Far East during the process of presenting and adopting the document of testimony (referred to as “exhibits” or “documents”) and some of the rules. During the course of the trial, the Tribunal adopted more than 4300 documents submitted by both parties (exclusive of those rejected) and is record breaking in the world’s judicial history (Fig. 4.1).

Fig. 4.1  Prosecution and defense parties

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With regard to the presentation and adoption of exhibits, Article 13 of the Tokyo Charter entitled the “Evidence”, has the following provisions: (a) 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. (b) The Tribunal may require to be informed of the nature of any evidence before it is offered in order to rule upon the relevance. (c) In particular, and without limiting in any way the scope of the forgoing general rules, the following evidence may be admitted:





(1) A document, regardless of its security classification and without proof of its issuance or signature, which appears to the Tribunal to have been signed or issued by any officer, department, agency, or member of the armed forces of any government. (2) A report which appears to the Tribunal to have been signed or issued by the International Red Cross or a member thereof, or by a doctor of medicine or any medical service personnel, or by an investigator or intelligence officer, or by any other person who appears to the Tribunal to have personal knowledge of the matters contained in the report. (3) An affidavit, deposition, or other signed statement. (4) A diary, letter, or other document, including sworn or unsworn statements, which appear to the Tribunal to contain information relating to the charge. (5) A copy of a document or other secondary evidence of its contents, if the original is not immediately available. (d) The Tribunal shall not require proof of facts of common knowledge, nor of the authenticity of official government documents and reports of any nation or of the proceedings, records, and findings of military or other agencies of any of the United Nations. (e) The transcript of the proceedings, and exhibits and documents submitted to the Tribunal, will be filed with the General Secretary of the Tribunal and will constitute part of the Record.

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The content of that provision was the adoption of exhibits. Clause (a) and (b) required that the rules of the court adoption of evidence should be simplified, so as to avoid the formalism of the common law system. However, despite that provision, in the actual trial the court still allowed inconsistency and formality by both parties regarding the adoption of evidence, thus wasting much time during the trial. Clause (d) acknowledges that facts of common knowledge need not be proved and is common in any procedural law. Clause (e) is about the adoption, registration, and filing of exhibits. Clause (c) is the most important provision relevant to the nature of exhibits. It sets out which documents of evidence will be adopted and in what way submitting of the documents will be adopted. According to that provision, the Tribunal adopted the written testimony, in addition to the written statements of witnesses (see Chap.1, Footnote 1), as noted by the following: (1) Government documents and any document signed by officials (including military personnel) or published by state organs; (2) Reports of the Red Cross and its members, and reports of other persons such as doctors, investigators, and other persons who know the facts described in the report; (3) Private diaries, letters, or any other documents relevant to the case admitted by the court; (4) A copy of all the above-mentioned documents (although the reason why the original copy is not available should be provided). Among a total of more than 4300 written exhibits adopted by the Tribunal during the entirety of the trial, those from the archives of government organizations accounted for the largest proportion and received the most attention from the Tribunal. Some of these official documents were from the governments of Allied countries, while some were from the Japanese government. As mentioned previously, all of the Japanese secret files that the occupying forces found from the Japanese government’s buried archives were placed in the record room on the third floor of the court building. Both prosecutors and defense counsels had the freedom to dig for materials that were favorable to their own side, and submit them to the Tribunal as documentary evidence.5 As for the documents of the Allied 5

 See Chap. 2, Sect. 2.6 of this book.

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governments, because most of them were prosecuting countries, it was certainly convenient for the prosecution to collect and provide them. Furthermore, the major Allies had sent their own assistant prosecutors to work in the International Prosecution Section, and they, of course, were familiar with how to use their own government archives and office documents. However, in theory, the defense counsel also had equal rights, and the courts had the duty to help them exercise that right. Because it is provided in Item (f) “Production of Evidence for the Defense” of Article 9 “Procedure for Fair Trial” in Section III “fair Trial for Accused” of the Tokyo Charter: An accused may apply in writing to the Tribunal for the production of witnesses or of documents. The application shall state where the witness or document is thought to be located. It shall also state the facts proposed to be proved by the witness or the document and the relevancy of such facts to the defense. If the Tribunal grants the application, the Tribunal shall be given such aid in obtaining production of the evidence as the circumstances require.

Because of the above provisions, the door remained open for the defense counsels to find documents of evidence within the government documents or organization archives of the Allied countries. It was the duty of the courts to assist in that regard after they had fulfilled the reasonable application procedures, just as the courts are obliged to assist them in summoning witnesses or getting other exhibits.6 Among the exhibits adopted by the Tribunal, in addition to government documents and archives (including any document signed by the heads of the department), another important type were the reports of the Red Cross and its members, and reports of individuals (such as doctors, intelligence officers, investigators, etc.). The prosecution presented many such documents of evidence when hearing the atrocities committed by the accused (what the Charter called “Conventional War Crimes” and “Crimes against Humanity”). The Tribunal had accepted excerpts of personal diaries, letters, and other personal files related to the cases presented by both parties. The 6  Governments of Allied countries differed in their attitudes toward defense counsels seeking evidence in favor of the accused. Some governments were perfunctory, indifferent, or even uncooperative. Some governments were more helpful, the United States government in particular. It granted almost all the requests of the defendant war criminals to seek evidence favorable to the accused. Not only were the United States government archives used by the defense counsels, some US dignitaries (such as the United States Secretary of State, Marshall, and former ambassador to Japan, Grew) even provided written testimony to the Tribunal in favor of the accused war criminals.

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most important private diaries were the lengthy diary previously mentioned and written continuously for more than 10 years by Kido Koichi (The Diary of Marquis Kido, 18 volumes in total), and a memoir dictated by Saionji Kinmochi, and taken down by Harada (the Saionji-Harada Memoirs). Those two books contain fairly detailed accounts of the gradual evolution of Japan’s national policy and the activities of the defendants during the then Japanese political arena. Both parties had extracted materials to their own advantage, and presented them as exhibits. As for private letters or other personal documents, the two parties did not present much content in that category. A long letter written by Puyi of Manchukuo to defendant Minami Jirō to ask for help is one of the most prominent, in which its authenticity had caused a stir in court and will be discussed in more detail later. In the case of all the above-mentioned exhibits, both parties had to try their best to present the original documents to the court for registration and filing. If the original documents could not be presented because of practical difficulties, the court also accepted a copy of the documents, namely, a duplicate of excerption or a photocopy, after hearing the reason why the original copy could not be presented, with the understanding that the reason was adequate. Many important documents from Allied governments or institutions were presented in the form of such duplicate copies. Additionally, the Charter of the Tribunal did not provide for the acceptance of other objects such as films, photographs, murder weapons, or the like, to “documents” presented as evidence. However, the Tribunal did in fact use the term “the Tribunal shall not be bound by technical rules of evidence” and adopted non-documentary evidence. For example, to illustrate Japan’s preparation for the aggressive war and the leading role of defendant Araki Sadao (a typical warlord) in the preparation of war, the prosecution once presented a film entitled Japan in Time of Crisis as evidence. The Tribunal accepted the film and ordered it to be shown in public in the courtroom. At that time, the people present in court held their breath in the dark and watched the film, full of Japanese aggression ambitions, until it had concluded (see Chap.1, Footnote 1). In the trial of the Japanese atrocities, the prosecution presented a film entitled “Bright Life of Captive” as evidence to prove the hypocrisy and deceiving propaganda of Japan. The film was also adopted by the court as an exhibit and was publicly screened in court. Furthermore, during the trial of the Japanese atrocities against Australian prisoners of war, the prosecution presented pictures (taken by prisoners secretly) of the miserable living conditions in the cap-

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tive camps, which were also adopted by the Tribunal. To prove his sincere repentance after the event, the principal criminal of the Nanjing Massacre, defendant Matsui Iwane, asked his defense counsel to present a picture of an altar set in his family house, saying the altar was laid out with the soil of Nanjing, Yuhuatai (where the Japanese army had killed most people), and a memorial tablet of “Chinese soldiers killed in battle”. Out of a guilty conscience, Matsui prayed for the dead, chanting worship, from morning to night (see Chap.1, Footnote 2). The puzzling and worthless picture was also accepted by the Tribunal. Fortunately, when sentencing Matsui to hang, none of the judges suggested considering that piece of “evidence”. Except in very rare circumstances, almost all of the evidence adopted by the Tribunal was written exhibits. The use of “exhibits” or “documents” rather than “material evidence” or “exhibit as evidence” is roughly in line with the actual situation. Those mentioned above are the type and nature of exhibits adopted by the International Military Tribunal for the Far East. The following are the steps to that were necessary to present documents of evidence to the court and the procedures for adopting those documents. 4.2.2   Procedures for the Presentation and Acceptance of Exhibits Either party shall first perform the following three procedures before presenting an exhibit to the court in a public hearing7: First, all documents shall be translated into English or Japanese; if the original document is in English, it shall be translated into Japanese or vice versa. If the document is in a language other than English or Japanese (such as Chinese, Russian, German, French), it shall be translated into English and Japanese. If the part or parts of the document are used as evidence, they shall be plainly marked in the original document and shall be translated into English and Japanese. Second, after the document is translated, the party who submits the document shall prepare copies (printing, letterpress, mimeograph, or photocopy). Up to 150 copies were usually needed. Third, a copy of every document intended to be introduced into evidence by the prosecution or the defense will be delivered to the accused concerned, his counsel, or to the prosecution, as the case may be, and also 7

 See Rule 6 of Rules of Procedure of the International Military Tribunal for the Far East.

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to the officer in charge of the Language Section of the Secretariat of the Tribunal, not less than 24 hours before such document is to be entered into evidence. The reason why a copy had to be delivered to the other party not less than 24 hours before such a document was to be entered into evidence was to give the other party sufficient time to check for any translation distortion or errors unfavorable to their side, and consider and study whether to raise objection and application against the adoption of such documents in the court, as well as what reason to use if they truly applied. That was the most stressful and demanding work of the prosecution after receiving the copy of documents the defendants intended to submit, which is also one of the focuses of the “battle of wits” of the two sides. The reason why a copy had to be delivered to the officer in charge of the Language Section of the Secretariat of the Tribunal not less than 24 hours in advance was to give the Language Section sufficient time to look through the documents to see whether there were any errors. If there was any error, the officer could either suggest the party producing the ­evidence declare the correction automatically, or apply to the court to declare the correction publicly. As explained above, prior to a document being presented in the open court hearing, the parties and the Language Section of the Tribunal had a lot of hard and stressful work to do in terms of the translation, printing, consideration, research, and reviewing of the documents. Considering that the Tribunal adopted more than 4300 such documents during the entire trial (exclusive of those rejected), one can imagine the great human and material resources consumed by the Tokyo trials in those aspects. After completing the above three steps, the party who was providing the document could create a number for it. For example, “Prosecution Document No…” or “Defense Document No…” Therefore, after numbering, when it was necessary to use that particular exhibit in the trial regarding a certain issue at the appropriate stage of the public hearing, it could be formally put forward to the court: First, on behalf of the party producing the evidence, the prosecutor or counsel stands on the platform in front of the judge’s desk, and states only one sentence: “I now present Prosecution Document No… (or Defense Document No…) as evidence.” Sometimes a few words about the content of the document and its relation to the case were added, but in most cases that was not necessary because, as previously noted, there was a general introduction by each party at the beginning of each stage, introducing

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what evidence the parties intended to produce, and what facts they intended to prove during that part. Therefore, when a particular exhibit was presented, unless a particular case arose, one sentence was enough for the party producing the evidence. After issuing the above-mentioned statement, if the audience was silent, it meant that the other party had no objection or protest, and there was no problem with the translation of the document. The President waited for a moment and then announced that the court had accepted the evidence. It followed that the clerk loudly announced: “Prosecution (or Defense) Document No… has been accepted and compiled as Court Document No…” The number of court documents was determined in accordance with the time when the documents were accepted by the court; it was uniform and there was no distinction between the prosecution documents and the defense documents. After the clerk had made the above announcement, the person presenting the evidence could begin to read the contents of the exhibit. After reading, the documents were officially included in the dossier, and were placed on file. At the same time, the parts that were read were recorded in shorthand and via voice recording, and became part of the court record. That was the simplest situation in which an exhibit submitted by one party was accepted by the court as evidence. But in many other cases, the situations were much more complicated than that. One possibility was that after the speech requesting that the court accept the documents as evidence, the officer or representative in charge of the Language Section of the Secretariat of the Tribunal could immediately point out certain mistakes or shortcomings in the translation and ask the court to permit certain modifications to it. Because the Language Section is an institution that is part of the Tribunal itself, its requirements are often approved by the Tribunal. Unless there are major shortcomings or significant errors in translation, the Language Section is not eager to make such a request. Therefore, that was not a great possibility, and there were only a few of those occurrences during the entire course of the trial. Another possibility was that after the speech requesting that the court accept the documents as evidence, the representative of the other party (the prosecutor or the defense attorney) immediately expressed objection or protest, and asked the court to take corresponding actions. Their requests fell into the following three types: (1) Having found errors or shortcomings in the translation of the exhibits submitted by the other party, one can ask the court to

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make certain changes in the translation of the documents. In that case, the court often referred the request to the court’s “Language Arbitration Commission” consisting of three persons (also known as the language arbitration panel) to study.8 The court, in accordance with the results of their study, then made a decision to accept or reject the claim and declared it in court. (2) If it was found that the exhibits presented by the other party had defects or were suspicious in form (e.g. papers were not issued by authorized organizations, seals or signatures were flawed, ­questions with date or place), one could ask the court to refuse to accept the documents or order the party presenting the evidence to withdraw the documents automatically and remedy the situation. So as not to delay the trial indefinitely, the court usually gave a flat refusal citing the provisions of Article 13 Item A of the Tokyo Charter.9 However, if the other party pointed out that the document had been forged or fabricated, rather than merely pointing out a certain defect or certain defects in its form, the court had to deal with it seriously. For example, the defense presented a letter written by Puyi of Manchukuo to Japanese Secretary of State for War Minami Jirō . The prosecution pointed out that it was a forgery, and requested the court to reject it. At that point, the court could not flatly and easily refuse the prosecution’s request because it was not the typical formal defect of the document, but a question regarding the authenticity and the existence of the document.10 8  Three members of the Language Arbitration Committee had to all appear in court, sitting in the committee seat, not away for even a moment, so as to settle any disputes arising from the language translation in the public hearing at any time. The committee is an authority on the language of the court, and its decisions are final and could not be overturned. See Sect. 2.6 of Chap. 2. 9  Article 13 Item (a) of the Tokyo Charter states that “The Tribunal shall admit any evidence which it deems to have probative value.” It was a very lenient rule, which gave the court great discretion. The court sometimes firmly took advantage of that provision; however, influenced by the formalist rules of evidence of the common law system, sometimes it resolutely refused to use this provision. During the course of 16 months of hearing presentations of evidence from both parties, the court’s attitude had been wavering and contradictory. 10  The way the Tribunal for the Far East dealt with the matter was to carry out handwriting identification by a panel of experts. Zhang Fengju, Professor of Chinese at Peking University, was invited as a member of the panel on the recommendation of a Chinese judge. However, because the expert opinions were in conflict with one another, that matter was not seriously investigated by the court, and ultimately left unsettled.

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(3) One could protest that the document submitted by the other party was not relevant or important to the case, and request the court to refuse to accept it. That was the most frequent protest and a demand made by both parties, with the defense counsels particularly using that method to create disputes to delay the trial. Whether a document was relevant or important to a case depended on the essence and content of the document, and therefore the solution was more complex and difficult, not as simple as the two problems mentioned above (mistakes in the translation and defects of the form). First, after the protest and the request for the court’s refusal to accept it, the speaker of the other party (prosecutor or defense counsel) ­immediately stated his reason why the document was not important or irrelevant. That statement had to be brief, forceful, and to the point. An overly verbose statement was liable to arouse the disdain of the judges who could render a judgment against him. Therefore, when a party received an exhibit from the other party 24 hours prior to the hearing according to the court’s provisions, they would hurriedly concentrate their attention on studying whether there were any protests against the document; if so, the reasons that would be used to protest; and what could be done to make the protest appealing and powerful. That was one of the focuses of “battle of wits” between the two parties. In that instance, both parties were finding fault with the exhibits submitted by the other party and fought over the smallest trifles. After the protester finished speaking, the party who was originally presenting the evidence could also speak to refute the grounds of the protest, and insist on requesting the court to adopt the exhibit. In theory, the protester could ask for a second speech, and the original party presenting evidence could request a second refutation. That could run in endless circles. However, after hearing one or two rounds of speeches by both parties, the court would typically put an end to it. The President would declare: “We’ve heard enough. Now is the time for us to make a ruling.” The way the court made a ruling was also a tedious process.11 During the initial stage of the trial, every time a party protested against exhibits submitted by the other party and requested that the court refuse to accept them, the President would announce a temporary adjournment after listening to the speech and argument of both parties, and the judges  See Sect. 2.3 of Chap. 2 of this book

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would retire to the meeting room to discuss the situation before going back to the court to announce their decision. That would take at least 20 minutes, or even more than half an hour, from beginning to end. As the trial progressed, those protests and demands became more and more frequent and more and more tiresome. The defendant’s lawyers realized that was one of the best ways to delay the trial, and therefore they would always try to find a loophole or some reason to make a protest to the court for any exhibits submitted by the prosecution, requesting the court to refuse to accept them. To deal with the deliberate delay of the parties, shortly after the beginning of the trial, the court soon adopted a new approach, that no ­adjournment meeting would be held to discuss those protests and requests, instead the judges would vote on the spot to make a decision, unless the President thought this was particularly important, or a judge said to the President that a meeting should be held. The vote was quite simple. Every judge was provided with a small scratch pad on the table. After the President stopped the two parties’ speeches, the judges would write down their own opinions on the pad, whether to accept the protest or to oppose the protest, and they would tear the paper off and pass it to the President. The President would count the pros and cons, and then make the majority decision as the ruling of the court and immediately announced it in public. If the ruling was to refuse the protest, the clerk would loudly announce that the exhibit had been accepted and compiled as a court document No …. Then the person presenting the evidence began to read the contents of the document. If the court accepted the protest, the person presenting the evidence had to automatically withdraw the documents and withdraw from the platform. The court’s new method of ruling saved much time during the trial, although the defense counsels’ interest in protesting against the other parties’ documents did not decline. Because they understood that the procedure of the ruling was simplified, but the explanation of the protest and the plea of the other party, together with the interpretation of both parties’ speech, can still delay a considerable amount of time. As a result, they were tireless in their efforts to do this throughout the trial. That mentioned above was the entire process from the preparation (translation, printing, and delivery to the parties concerned) to the acceptance of an exhibit. It was a fact that from the time of submission, most of the documents were not subject to protest, argument, or ruling. However, taking into account that the Tribunal adopted more than 4300 such

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exhibits, the time spent on that process was considerable, even if only approximately 10% of them were subject to protest, argument, or ruling. Furthermore, many documents (estimated to be 10%) presented by one party, were finally rejected by the Tribunal after protest by the other party and argument by both parties. Although not on the list of the over 4300 documents adopted by the Tribunal, those documents still cost the Tribunal a lot of time in the process of rejection. From what has been mentioned, the filing and adoption of the exhibits was indeed a stressful and strenuous task for both parties as well as for the Tribunal, and the amount of time consumed by it during the entire trial was extensive.

4.3   Procedure of Witness Appearing and Testifying in Court 4.3.1   Summons of Witnesses and Rules Before Appearing in Court As discussed in the previous section, the procedure of the submission and adoption of exhibits in the International Military Tribunal for the Far East was quite complex and cumbersome, and the struggle regarding that matter between the two parties was very fierce and intense. However, what was more complex and cumbersome was the court’s procedure on witnesses appearing and testifying in court, over which the two parties had the most violent and intense arguments. Considering that the Tribunal accepted 419 witnesses offered by the two parties to testify in the trial, that undoubtedly took the longest time during the trial.12 The provisions for witnesses in the Charter and Rules of Procedure of the International Military Tribunal for the Far East are quite simple and only the following: 12  Of the 419 court witnesses, 109 were provided by the prosecution (called the “prosecution witnesses”), while 310 were provided by the defense (called the “defense witnesses”). The procedure of witnesses testifying in court consumed the most time during the trial. For example, the testifying and cross examination of emperor Manchukuo Puyi took an entire eight day. Other important witnesses included Liebert, an American expert on Japan; Wilde, British Colonel from Southeast Asia; Richardson, Admiral from the United States; Tanaka Ryukichi, the former Japanese army major general; Chin Teh-Chun, the mayor of Beijing during the Lugou Bridge Incident; and Wang Lengzhai, Wanping County commissioner and magistrate. Each of them took several days during the trial.

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Article 9 Item E of the Tokyo Charter “Procedure for Fair Trial” provided that the accused shall have the right to examine any witness (the accused has the right to defend himself or to be represented by counsel, these rights are subject to such reasonable restrictions as the Tribunal may determine); Item (f) stipulated that the Tribunal should assist the defendant in summoning witnesses (“An accused may apply in writing to the Tribunal for the production of witnesses or of documents. The application shall state where the witness is thought to be located. It shall also state the facts proposed to be proved by the witness and the relevancy of such facts to the defense. If the Tribunal grants the application, the Tribunal shall be given such aid in obtaining production of the evidence as the circumstances require.”). Article 11 Item (a) of the Tokyo Charter “Powers” stated that the Tribunal shall have the power to “summon witnesses to the trial, to require them to attend and testify, and to question them”; Item (d) states that the Tribunal shall have the power to “require of each witness an oath, affirmation, or such declaration as is customary in the country of the witness, and to administer oaths”. Item (a) Rule 4 of the Rules of Procedure on “Witnesses” stated that “Prior to testifying before the Tribunal, each witness shall make such oath or declaration or affirmation as is customary in his own country”; item (b) provides “Witnesses, while not giving evidence, shall not be present in court without the permission of the Tribunal. The President shall direct, as circumstances demanded, that witnesses shall not confer among themselves before giving evidence”. The provisions regarding the witnesses only mentioned the control of the witness by the Tribunal and the rights of the defense counsels to summon and cross examine the witness, without any detailed provisions on the entire procedure of witness testimony and examination. The Tribunal for the Far East followed the customary rules of the general court in terms of the procedure of witnesses giving evidence and accepting examination, particularly the customary rules of the common law system. The customary rules of the common law system are the most cumbersome, the most complicated, and the most formalistic among all legal systems. Although it is explicitly provided in the Tokyo Charter that “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.” (Item [a] Article 13), in fact, regarding the issue of exhibits or witnesses, the Far

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East Court proceedings in general were still in accordance with the common laws of customary rules, only with some modifications in some excessively complicated aspects. The rules of summoning a witness and what the witness is expected to do before appearing before the Tribunal for the Far East will be discussed first. Before the beginning of each stage or each part of the trial, the parties had to submit to the Tribunal the list of witnesses and the reason for inviting them at that particular stage or part, which was examined and approved by the Tribunal. As for those witnesses who were approved to appear in court, the Tribunal issued summonses or notices to them, informing them when they were required to appear in court at a particular stage of the trial. The Tribunal’s approval of the list was relatively lenient, rarely refusing any witnesses. To ensure the fairness of the trial, the Tribunal took special care with the defendants’ request. For those who were not willing to testify on behalf of the accused or those who had concerns about being witnesses, the Tribunal often resorted to pressure although the Tribunal could not force a person who did not want to testify to appear in court. Most of the witnesses provided by the defense were Japanese, who were in Japan, and most of whom lived in Tokyo. Most of those witnesses could appear in court on time, and there were not many problems in terms of their transportation, accommodations, reception, and other issues, and their time waiting in Tokyo was not likely to be very long. In general, the expenses of their reception were paid by the defense counsels of the accused (namely, the Japanese government). For the witnesses provided by the prosecution, their backgrounds were more complex: some were Japanese living in Tokyo or other area in Japan; some were Japanese war criminals residing in the Tokyo Sugamo Prison; some were Americans working in the GHQ in Tokyo; some were delegates of allies in Japan; some were foreigners who were invited or summoned to testify in Tokyo. For the above categories of witnesses, there was not much difficulty with their attendance and time of waiting. But for the latter category of witnesses, those who came all the way to Japan to testify, there were often problems regarding their attendance. Unless there were special circumstances, the Tribunal usually asked the GHQ to be responsible for the reception and care of those witnesses, including the arrangements and expenses of their travel, transportation, and food and lodging in Tokyo. Additionally, during the stay in Tokyo, each person received a daily allowance of $1, which was a general rule.

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Occasionally, there were individual witnesses who were willing to give up that type of reception and care. For example, senior officials or celebrities from the allies, most of whom were received by the country’s mission to Japan. There were also very few witnesses who were summoned from prisons from one of the Allied countries. The responsibility for the custody of those witnesses in Tokyo was, of course, still borne by the country’s mission in Japan because after giving testimony, they would be escorted to return to that country. For example, Puyi, emperor of former Manchukuo, was summoned from the Soviet Union Harbarovsk Prison to testify in court. He was guarded by the Soviet mission in Japan during his trial in Tokyo, and was escorted back to Harbarovsk after his testimony, still by the Soviet mission. The reception and care of witnesses in Tokyo was relatively simple. What was more difficult was with the witnesses waiting to appear in court. Because the trial process of the Tribunal in Tokyo had many twists and turns, bristling with complications and difficulties, it was impossible to accurately estimate the speed of each stage or each procedure in advance. As a result, the date required for a witness to appear in court was not certain. That was not a problem with witnesses who lived in Japan, particularly in Tokyo; but it was very difficult for those witnesses from Allied countries who came all the way to Japan from overseas. Some people came to Japan and waited for many days with nothing to do, while the date to testify in court was distant and indistinct, making the witnesses become impatient. Others had very important work to do in their own countries, and could not be absent for long periods of time, and therefore they felt uneasy about the long delay in Tokyo. For these types of people, apart from comfort and persuasion, the Tribunal usually allowed them to temporarily return to their own countries and come back to Tokyo later, if they insisted on doing so. There was an alternative, however, which allowed them to testify in advance, which meant that they could appear in court to give testimony and accept cross examination before the trial reached the stage where they were required to testify. Because that alternative impeded the order of the trial too much, the Tribunal did not regularly use that alternative. The only large-scale adoption of such an alternative was for a group of Chinese and foreign witnesses testifying regarding the Nanking Massacre at the end of 1937. These witnesses were provided by the International Prosecution Section. Among them were officers, businessmen, professors, priests, and heads of charities. When the

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men were told to come to Tokyo, the trial of the court was not close to hearing about the Japanese occupation of Nanjing. After many days of waiting, they asked to return to China. In view of this, the prosecution had made a special request to the Tribunal for an exception to allow those witnesses to testify in court in advance. The Tribunal approved the request. Those individuals then came to testify successively in court, and accepted the direct examination by prosecutors and cross examination by the defense counsels, which took many days to complete. Witnesses in court are divided into two types: one is provided or summoned by the prosecution, generally referred to as a “prosecution ­witness”; the other is provided or summoned by the defense lawyer, generally referred to as the “defense witness”. According to the practice of the common law system, the distinction is very strict and important. Under the common law system, a witness on behalf of one party, after receiving from the court the identity of either a “prosecution witness” or a “defense witness”, is then not allowed to have any contact or communication with the other party or its representative. That is, a “prosecution witness” as identified by the court cannot contact or communicate with the defendant, or the defendant’s lawyer or representative, not even just for social or courtesy purposes. The same applies to the “defense witness”, whose contact or communication with the prosecutor or the prosecutor’s representative is strictly prohibited. It was a very strict rule. Therefore, both parties, the prosecutor and the defense counsel, had to do their best to avoid contact or communication with the other party’s witnesses. If he did not avoid such contact, or should he even have taken the initiative to contact witnesses of the other party, once reported, he was guilty of the crime of “tempting the witnesses”. If that was the case, the court could decide to give him a disposition to stop appearing in court. As for the “tempted” witness, the court could also decide to suspend his testimony or declare his testimony invalid. Before appearing in court, apart from avoiding contact with the other party, there was another regulation that witnesses had to observe, which was: Witnesses, while not giving evidence, could not be present in court without the permission of the Tribunal. That was also a strange rule. Its original intention was to prevent witnesses from knowing the real situation of the trial in court, thus becoming less innocent and less honest when it

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was their turn to testify. In fact, that was a subjective idea and did not have much practical utility because though he did not appear in court to observe, he could easily understand the real situation through contact with the party inviting him to appear in court. In fact, prior to giving testimony, the witnesses had frequent and close contact with prosecutors or defense counsels; the point of view that he should take at the time of testimony, the testimony he should give, and how he should deal with the cross examination, and so on, all had been “negotiated” in advance, or had been “directed” by the party inviting him. The court not only did not prohibit that, but also took them for granted. The court did however strictly prohibit auditing and observation, which were of no great importance, believing that it would make the witness more “innocent” and “honest”, less affected by some external influence when giving testimony. That was an unreasonable rule. It was almost like seeing a witness as a “mercenary”: who only listens to the command of the employer, without any act of treason. The International Tribunal for the Far East had adhered to such an unreasonable rule for both parties and all witnesses during the trial. It is not entirely appropriate to refer to a witness as “mercenary”. However, it can explain some of the characteristics of witnesses during the International Military Tribunal for the Far East as well as in the courts of the common law system. In addition to the characteristic that the witness should not have any contact with the other party, there is another characteristic, which is that the witnesses of one party, at various times, can be turned into the other party’s witnesses, as in the 1930s during the Spanish Civil War when mercenaries sometimes worked for the Republic Army attacking the National Army, and sometimes worked for the National Army attacking the Republic Army. There had been several such witnesses during the Tribunal for the Far East. For example, witness Tanaka Ryukichi (former major general of the Japanese army) testified several times in court, and sometimes appeared as a “prosecution witness”, proving some facts against the defendant, while sometimes he appeared as a “defense witness”, proving some facts in favor of the defendant. Another example, Matsumura (former major general of the Japanese army) also served as a “prosecution witness” to testify in court, proving that the defendant Umezu Yoshijiro participated and presided over the “aggression” plan against the Soviet Union, and later he testified as a “defense witness”, proving that Umezu Yoshijiro had friendly attitudes toward the Soviet Union. The Tribunal for the Far East Practice did not prohibit “serving one party in the morning and serving the other in the evening”. What it

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forbade was the witness having any contact with the other party or his representative during the period when he was given the identity of the prosecution witness until he finished his testimony. It was entirely permissible for the witness to decide to testify for the other party when his testimony for one party was completed. There was also another rule which was pursued in the trial of the Tribunal for the Far East, that is the witness had to appear in court voluntarily and he had to testify by his own consent. There was a strange i­ncident in the trial: the defense counsel inexplicably brought a Japanese witness to the court called Hatano, and said he would testify for the defendant, but Hatano said he did not agree to testify in court for the defendant. The defense counsel was greatly embarrassed by that. The President immediately ordered Hatano to be sent away, and rebuked the defense counsel, saying: “You must not compel a witness to testify in violation of his wish.”13 The above-mentioned rules are what the witnesses had to observe before giving testimony in court. The following are some of the main steps and rules that had to be observed by witnesses appearing in court during the hearing. 4.3.2   The Oath, Warranty, or Statement of a Witness When it was their turn to produce evidence during the trial, one party (the prosecution or the defense), could ask the court to summon the witness immediately, after explaining that the intent was to prove a certain fact or facts with the aid of a witness. In that regard, the court usually granted the request. After being introduced to the court by the marshal and standing in front of the witness stand, the first thing for the witness to do was to take an oath. According to the rules of the common law system, the oath of a witness was extremely important. All the testimony of the witnesses had to be confirmed by oath. If the witness refused to take an oath, his testimony would be null and void, and the court could not use the testimony as evidence. However, exceptions could be made if the witness declared that the oath was contrary to his religious beliefs or that he did not believe in any religion at all. On such an occasion, an oath was replaced by a solemn pledge or declaration. 13  See Transcripts of Proceedings and Documents of the International Military Tribunal for the Far East (April 29, 1947), pp. 21062–21063.

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The Tribunal for the Far East adopted a more flexible approach to the oath taking of witnesses. Because it was an international tribunal, and witnesses were from various countries, the Tribunal’s demand for the oath of a witness was not as rigid as that of the common law courts. Instead, it only asked to be in conformity with the law of the witness’s own country. Article 11 Item (d) in Charter of the International Military Tribunal for the Far East stipulates that the Tribunal shall have the power “to require of each witness an oath, affirmation, or such declaration as is customary in the country of the witness, and to administer oaths”; Rule 4 Item (a) in Rules of Procedure of the International Military Tribunal for the Far East stipulates “Prior to testifying before the Tribunal, each witness shall make such oath or declaration or affirmation as is customary in his own country.” Thus, witnesses took an oath in the Tribunal for the Far East in a variety of ways. If the witness was English or American, he could take an oath executed by the marshal in the typical way of the common law courts. The marshal and the witness each raised their right hand. The marshal read each sentence of the oath, and the witness repeated sentence by sentence, and the last sentence was “so help me god”. If the witness was not from a common law country, he could sign, seal, or place fingerprints on a prepared statement or a written guarantee in accordance with his domestic law. The content of a written guarantee or statement was nothing but “As an honest person, I promise to tell the truth. I am willing to accept any punishment, once found breach of promise.” After sealing and signing, he sent the written guarantee or statement to the marshal. At that point, the oath was completed. That was followed by the witness giving testimony: The first was the “direct examination”, followed by the “cross examination”, and finally there could be “re-direct examination” and “re-cross examination”—those stages were in accordance with the general practice of the common law courts. The rules of procedure for witnesses to testify in the common law courts are very complex and cumbersome. Therefore, it is not difficult to imagine that it was not an easy thing to do, but rather a rather strenuous one for a witness to testify in the Tribunal for the Far East. 4.3.3   Four Stages of Witness Testifying and Accepting Examination The four stages of the witness testifying and accepting examination will now be briefly discussed, namely, “direct examination”, “cross examination”, “re-direct examination” and “re-cross examination”. It must be

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pointed out that among the over 400 witnesses of the Tribunal for the Far East, not every witness went through the four stages. Many witnesses left the witness stand after only one or two stages. But because the Tribunal provided that the examination of witnesses may go through the four stages mentioned above, and in fact many witnesses did go through those four stages, there will be a rough explanation regarding the nature and significance of each stage, and the rules that witnesses from both parties had to comply with during said stages. This explanation can further give the understanding of the complexity of the procedure of testifying in the Tribunal of the Far East and was one of the main reasons why court trials dragged on for such a long time. 4.3.3.1 The First Stage: Direct Examination “Direct examination” is also called examination in chief, which means the direct or chief examination of the witness. It is translated (into Chinese) as the “original examination”, meaning that it is the original examination of the witness, and the subsequent cross examination, re-direct examination, and re-cross examination are all based on it. Direct examination is undoubtedly the main stage of the witness examination because all of the relevant facts of the case, what the witness sees and hears, and his opinions and feelings, should be told during this stage. In the so-called civil law countries, direct examination is generally performed by the judge. The judge asks the question and the witness answers. In principle, both parties had to raise their questions to the witness through the judge. It is a different story in the common law system. The direct examination is not performed by the judge, but by the agent of the party who provides the witness. If the witness is a “prosecution witness” provided by the prosecution, the prosecutor shall carry out the direct examination. If the witness is a “defense witness” provided by the defendant, the defense counsel shall carry out the direct examination. The International Tribunal for the Far East adopted the way of the common law system. In the International Tribunal for the Far East, the direct examination of a witness started immediately after the witness was brought to the witness stand and completed an oath or other similar procedures. The direct examination of a witness was usually initiated by questioning his name, age, place of origin and resume, and then gradually asking about the case itself. The response of the witness to all questions raised by the executor was recorded in the court records, which constituted the most

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important part of the witness’s testimony, that is, the center of the testimony. The cross examination, re-direct examination, and re-cross examination are closely related to this center. Because the witnesses were provided by the executor of the direct examination the question and answer part of the examination between them was usually very smooth. As a matter of fact, the questions asked and answers given had been negotiated and arranged in advance. The executor was in the position of the “director”, and he could usually get everything he needed from the witnesses’ answer. The professional competence of a prosecutor or a defense counsel carrying out the direct examination is shown here. A capable prosecutor or lawyer is often able to get the most unfavorable testimony to the opposing party from the witness with a small number of questions. While a mediocre prosecutor or lawyer could still fail to get to the key point after asking a lot of questions and beating around the bush, which not only made the audience feel tired of the hearing, it often gave the other party an opportunity to protest, and was reprimanded by the court. Although most of the questions and answers in the direct examination were negotiated and arranged by witnesses and executors in advance, there were also certain rules they had to observe during the direct examination. Most of those rules were derived from the traditional practice of the common law courts, and were not expressly provided in the Tokyo Charter or Rules of Procedure of the International Military Tribunal for the Far East. First, the question and answer between the executor of the direct examination and the witness had to be limited to the facts relating to the jurisdiction of the court, which means that the question had to be directly related to the case. The court had the right to stop anything beyond that range, and the other party could ask the court to order the executor to cancel his question or order the witness to not reply on the grounds that “there is no relevance to the case” or that “there is no importance to the case”. The court had to make a ruling on such a request on the spot. Second, the witness had to rely entirely on their own memory when answering the question, and he could not carry written documents, notebooks, diaries, or any paper as a reference without the consent of the court. That rule was made according to such an assumption: Words created from memory are more authentic and reliable, while referring to written words in testimony is likely to be cheating. Therefore, a witness could not refer to any written words when giving testimony unless the witness

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made a statement saying it was necessary to refer to written words in advance and got the court’s permission.14 Third, when a witness answered, he could not state the facts he had derived from hearsay. In the common law system, the rules against “hearsay evidence” are very strict (see Chap.1, Footnote 2). In the words of Coke, a famous British jurist, a witness “can state the facts of his five senses. He should state what his eyes have seen, ears heard, tongue tasted, nose smelled, or skin touched, but he cannot state what he has heard from a third person”. In the common law courts, that rule is absolute. To adopt what is said to have been heard from a third person, it was necessary to summon the third person to appear in court to testify, but not through the statement of another witness. In the early days of the trial, the Tribunal for the Far East had strictly tried to enforce the rule. However, due to difficulties, adherence to the rule was relaxed after September 1946. Therefore, in the Tribunal for the Far East, witnesses could state the facts of hearsay within reasonable limits. As for the value of the “hearsay evidence”, judges could make their own judgments. However, the Tribunal did not accept completely unfounded “hearsay” rumors. Fourth, the executor of the direct examination could not ask the witness facts or opinions beyond his knowledge, and the witness could not answer such questions, otherwise the court would automatically stop the proceedings, while the other party would protest and ask the court to stop it. For example, for a Chinese or Japanese soldier who was testifying, you could not ask him the total number of Chinese or Japanese army during the Sino-Japanese War, because that was beyond his knowledge. However, such questions could be raised to a secretary of the army, a chief of staff, or a senior officer in the army of China or Japan. Although questions involved personal estimates or opinions, they were qualified to answer 14  Puyi, emperor of the former Manchukuo, took a peek at a small notebook held in his hands when giving testimony in court. After detecting this, the defense counsel immediately asked the Tribunal to stop it, and ordered him to present the notebook to the Tribunal for review. Puyi argued, “My notebook is written in Chinese characters.” The President said “That does not matter. One of our colleagues is a Chinese judge who is proficient in Chinese, and he can read what you write.” After the presentation, the Chinese judge found what was written on the shabby little note book was only a dozen extremely common dates, such as “I was born in 1906…”, “My first enthronement in 1909…”, “the Revolution of 1911…”, “The First World War began in 1914…”, “The First World War ended in 1918”, and so on. The purpose of carrying that small notebook might have been nothing but to help his memory, so as to avoid temporary panic and consequent forgetfulness, never expecting to violate the prohibitory regulation and to cause a crisis.

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such questions in terms of their status and their knowledge and competence. As for the evidential value of his answer, it was a different matter and should be judged by the court. According to the strict rules of common law tradition, except the so-called expert witness summoned by the court to make a certain identification or estimation, a general witness could only state the facts that he witnessed and had known when he was testifying, rather than his own opinions or estimates. However, the International Military Tribunal for the Far East did not strictly adopt that rule. It allowed the witnesses to express their opinions or make their own estimates within the scope of their knowledge. There was another important rule within the evidence law of the common law system, which was not strictly observed by the International Military Tribunal for the Far East. That is, leading questions were not allowed in the examination of the witnesses.15 The leading questions refer to those questions which contained factors that guide or prompt the witness to answer. Such questions were strictly forbidden in the British and American courts, because it could confuse witnesses and influence their independent thinking and free will as a witness. In the early trials, the International Tribunal for the Far East had abided by that rule, but later they found great difficulty in the actual use of it because it could delay the trial indefinitely. Therefore, the court gradually loosened up and finally gave up the rule. Given the fact that the International Tribunal for the Far East did not adopt the jury system, the risk of abandoning the rule was 15  It means that in the question itself, there are factors that “guide” or “prompt” the witness to answer, thus limiting or influencing the freedom of his answer. For example, the witness is suddenly asked such a question: “Did you see A kill B with a knife or a gun?” This question will be considered a leading question because in this case, the witness has no choice but to answer “with a gun” or “with a knife”. The executor of examination should first ask the witness “Did you see B kill A?” If so, ask again in what way he saw it. In that way, the questions are logical. There is no suspicion of giving hints, and the freedom of the witness’s response will not be affected or limited by the question. Second, this rule in the British and American courts does not make sense because despite the leading questions, witnesses can still answer: “I did not see A kill B.” or “A did not kill B with a knife or a gun, but a…” Unless the witness is foolish or his mind is too simple, the freedom of his answer will not be affected or limited. However, because the British and American courts use the jury system, to some extent this prohibition is understandable. Because jurors are mostly ordinary residents with relatively normal ways of thinking, they might be easily confused by such questions, and careless witnesses may easily fall into the trap of such questions. The International Tribunal for the Far East did not use the jury system, nor did it have any jurors, all judgments regarding the facts and legal issues were made by the judges, therefore, there was no need to strictly enforce the prohibitions.

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modest. From the trial record, we can clearly see that the Tribunal’s attitude toward that matter was inconsistent from beginning to end. The above-mentioned rules had to be observed by the executor and the witness in the direct examination. It also went without saying that the witness had the duty of course, to answer the questions raised by the court itself. Any judge who wished to clarify a fact could raise any question to the witness through the President of the court. But in fact, the questions raised by the court to the witness were very rare. In the direct examination, as in other stages of the trial, the court’s attitude was detached. In addition to its final decision on the whole case, the main task of the court had only been to make an impartial ruling on disputes, protests, and applications of the two parties. Because the testimony provided by the witness to the court was made by question and answer, all his testimony was made up of his answers to all questions. That question and answer method is commonly used in the British and American courts. Its advantage is that in response to specified questions, the statements of witnesses may be more specific and real, and his attitude may be more careful and rigorous under surveillance and continuous interference of the other party. He could not speak carelessly or talk in a wild disorderly manner. However, this is only a formalist view because as pointed out above, the contents of those questions and answers were essentially arranged by the executor and the witness in advance. In addition to making the testimony fragmented and difficult to highlight, the biggest disadvantage of extracting testimony from questions and answers was a waste of time. The testimony of a witness could last one hour if he was allowed to accomplish it from beginning to end without stopping. However, if the question and answer method was used, coupled with the constant interference of the other party, and the trouble of interpretation, it could take five hours, or even longer. The difference between the two was great. The International Military Tribunal for the Far East used the questions and answers method entirely during the initial hearing of witnesses. In less than two or three months, however, the court found that the direct examination by that meant that it would delay the court’s trial indefinitely. Considering the fact that the trial case was large and complex, and the number of witnesses reached several hundred, the court realized it was necessary to immediately change their methods. The lengthy and wordy speech of Japanese lawyers and witnesses was another major reason for the court to choose an alternative method as soon as possible.

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After several discussions at the judge’s meeting and with the consent of both parties, according to the right to use any non-technical procedure to facilitate the trial endowed by the Tokyo Charter, on June 18, 1946, the Tribunal announced that it would use reading the testimony to replace questions and answers in the direct examination of the witness, which meant the witness would prepare all his testimony to the court in advance in writing, and the prosecution or defense (depending on which party provided the witness) would translate the written testimony into the language commonly used in court (i.e. Japanese or English), and send it to the other party before the trial, so that there would be time to study whether they would raise protest or objection and how to carry out cross examination. When the trial began, the witness would be led to the witness stand and would take the oath. After that, the representative of the party providing the witness (i.e. the prosecutor or the defense counsel carrying out the direct examination) would show the document to the witness, and ask him: “is this the testimony you provided to the court?” After the witness answered “yes”, he would ask him again, “do you think the contents of the testimony are correct?” After the witness answered “yes” again, the representative would immediately apply to the court for adoption of the testimony. After the court agreed, the Clerk would loudly announce the acceptance and give it a court exhibit number. When the Clerk finished making the announcement, the executor of the direct examination began to read the written testimony for the witness until he had finished it. The reading of the translated testimony followed the “liberal translation” method. In that way, much time was saved. If the opposing party had any protest or objection to the written testimony, it had to make the protest or objection to the court and give reasons before the court could accept it. In such a case, registration and reading could not begin until the court had made a ruling. The proceeding of direct examination ended when the executor of the direct examination finished reading the written testimony of the witness. If he had further questions to ask the witness, he could orally ask the witness supplementary questions. But that was rare. Even if there were questions, there were usually only a few. Because the written content was discussed in detail by the executor and the witness in advance, there was not likely to be too much that had not been mentioned. It was a great progress in the trial procedure of the International Military Tribunal for the Far East to change their way of direct examination to read the written testimony. The amount of time it saved for the

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court was incalculable. If the court had adhered to the traditional practice of the common law system, using questions and answers as the only way for direct examination with hundreds of witnesses, just as it had during the initial stage of the trial, then it was not difficult to imagine that the Tokyo trial would have been greatly delayed, month after month, year after year, and the end of the trial would have been put off to the indefinite future. In the various measures taken by the Tribunal for the Far East to speed up the trial, the change in the way for direct examination was undoubtedly the most important and wisest one. 4.3.3.2 The Second Stage: Cross Examination Cross examination was an important stage in the process of witnesses testifying in court, but not a stage that each witness had to go through. For some witnesses, when the direct examination was completed, and should the other party not want to carry out cross examination, their task of testifying had then come to an end, and they were allowed to leave immediately. There could be many reasons why the other party gave up cross examination of the witness. Possible reasons were that the facts mentioned by the witness were very simple and clear, which were hard to fault; the witness was firm and tough, and his testimony was reasonable, so it was not easy to get anything out of his mouth to the advantage of the other party; the facts mentioned by the witness were of no great importance, and have little value as evidence, most probably, the court would not pay attention to them, so there was no need for cross examination. For example, the defense counsels provided many former colleagues, comrade-in-arms, or subordinates of the defendants to testify in court, saying that the defendant had always been honest, friendly to others, had no cruel behavior at all, or that the defendant loved peace, and was always enthusiastic about international cooperation, with no intention or ambition to invade other countries at all. For that type of defense witnesses, in most cases the other party (prosecutors) gave up cross examination so as to express contempt or scorn. In addition to the above-mentioned examples, in most cases witnesses escaped cross examination by the other side. It was estimated that among the over 400 witnesses who personally appeared in the International Tribunal for the Far East to testify, about half were cross examined. Cross examination was carried out by the lawyer or representative of the other party. For the prosecution’s “prosecution witness”, cross examination was carried out by the defense counsel. For the defendant’s “defense witness”, cross examination was carried out by the representatives of the

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International Prosecution Section, namely, the prosecutor, including the chief prosecutor and the assistant prosecutors of various countries. It must be pointed out that “a defense witness” was only cross examined by one prosecutor, because the procuratorial department was a unified whole; while “a prosecution witness” could be cross examined by one or several defense counsels, because defense counsels were not unified, with all of them representing different interests of various defendants. Therefore, if a witness’s testimony was against or involved several defendants, he could be cross examined by the defense counsel of each defendant. For example, in his testimony during direct examination, emperor of Manchukuo Puyi focused on attacking the defendants Itagaki Seishirō and Doihara Kenji, and he also accused Minami Jirō , Hoshino Naoki, Kaya Okinori, and other defendants. During the cross examination stage, the counsels of those defendants stood up and kept on raising numerous questions to counterattack him, which made the witness terribly fatigued. The cross examination lasted eight entire days. Many other witnesses, such as Chin the-Chun, Wilde, Liebert, Ballantine, and Tanaka Ryukichi were also kept on the witness stand for days by cross examination until they could “get away”. First, the main purpose of cross examination was to make the witness’s testimony in direct examination sound inexact, untrue, or inconsistent, illogical, or even like nonsense or fiction by raising questions to the witness. In that way, the value of the testimony could be offset or reduced. Second, the purpose of cross examination was to attack the witness’s credibility or personality by asking questions, so that the court might doubt the reliability of his testimony. The third purpose was to raise some new questions (i.e. questions that had not been asked during direct examination), with an attempt to obtain some favorable material for their own side from the witness’s reply. Above are the three objectives the executor of the cross examination aimed to achieve. Whether the prosecutor or defense counsel carrying out the cross examination was capable or not, depended on the achievements he could make in those three aspects. The cross examination was the focus of the struggle between the two parties. The executor had to rack his brains and try his best to resort to every conceivable means and seize every opportunity to dig out the flaw in the witness and his testimony.16 16  It means that in the question itself, there are factors that “guide” or “prompt” the witness to answer, thus limiting or influencing the freedom of his answer. For example, the witness is suddenly asked such a question: “Did you see A kill B with a knife or a gun?” This

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As for witnesses, the cross examination was the most intense, even painful to experience. During the direct examination the witness was interrogated by people on his own side, who were friendly. Most of the questions and answers had been discussed in advance. In the cross examination, he was interrogated by “enemies”, who were not friendly, and the questions were often unexpected, sometimes strange and eccentric, or even completely irrelevant. Therefore, the witness had to be attentive and vigilant in answering the questions, not to give any opportunity that could be exploited to the other party’s advantage. It was a cruel test of the intelligence of a witness, and considered as mental torture. The British jurist, Harris, compared the cross examination of witnesses to the anatomy of the dead. He wrote: “It is somewhat like anatomy in forensic science, what is different is the witness is alive, and he is very sensitive to torture.”17 The scope of questioning witnesses in the cross examination had always been in dispute in the International Tribunal for the Far East. Initially, the Tribunal was indecisive and contradictory. The cross examination of the witness should be restricted to his testimony in the direct examination, namely, the facts he told and the opinions he expressed. If unchecked, allowing any question to be raised to the witness, the cross examination would be turned into a boundless and endless verbal battle. The witness would get confused and struggle to cope. But the Tribunal did so at the very earliest stage of the trial. It was modeled on the British law, taking an extremely tolerant attitude to the scope of questions during the cross question will be considered as a leading question. Because in this case, the witness has no choice but to answer “with a gun” or “with a knife”. The executor of examination should first ask the witness “Did you see B kill A?” If so, ask again in what way he saw it. In this way, the questions are logical. There is no suspicion of giving hints, and the freedom of the witness’s response will not be affected or limited by the question. Second, this rule in the British and American courts does not make sense. Because, despite the leading questions, witnesses can still answer: “I did not see A kill B.” or “A did not kill B with a knife or a gun, but a…” Unless the witness is foolish or his mind is too simple, the freedom of his answer will not be much affected or limited. However, because the British and American courts use the jury system, to some extent this prohibition is understandable. Because jurors are mostly ordinary residents with relatively simple mind, they are easily confused by such questions, and careless witnesses may easily fall into the trap of such questions. The International Tribunal for the Far East did not use the jury system, nor did it has any jurors, all judgment about fact and legal issues are made by the judges. In this case, there is no need to strictly enforce the prohibitions. 17  Experience in the Legal Profession, p. 38. Cited from An International Trial of Japan’s Leading War Criminals, Radzinski and Rosen Blitt, p. 123.

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examination. Except for completely unrelated or very boring questions, the Tribunal rarely stopped any questions from being raised by the executor of the cross examination. And that encouraged executor to put forward many new questions unmentioned by the witness in the direct examination, with a purpose of finding something to his own advantage from the witness’s answer to those new questions, for future debate and summary. Practice has proved that that was not a good idea. Its biggest drawback was bringing up unnecessary ramifications and causing confusion, and wasted too much time. As early as June 25, 1946, the International Prosecution Section applied to the court for a change, but it was refused by the President.18 The unauthorized refusal of the President caused dissatisfaction from some judges. They believed that in order to prevent the trial from being delayed indefinitely, the scope of the cross examination had to be strictly restricted. After several discussions and debates among the judges, a resolution was passed at the judge’s meeting and announced publicly in court on July 25, 1946.19 The decision was announced that “The court decided that from now on, all cross examination must be limited to the main problems mentioned in the direct examination.” That was to say, when questioning the witness during the cross examination, the questions had to be related to problems mentioned in the witness’s testimony in the direct examination, namely, facts mentions or opinions expressed in the direct examination. Not only that, but those questions had to be the main problems, which had a direct or important relationship with the case, rather than problems of no great importance. After the scope of the cross examination was determined, the unlimited and boundless questioning of witnesses was reduced. It is true that there was no absolute dividing line between what the main problem was and what it was not. But with that criterion, the court could order the witness to not answer certain questions raised by the executor of the cross examination. If the executor continued to ask irrelevant questions of the witness, the court could condemn him, or even stop his right of cross examination. At the same time, with that criterion, the party providing the 18  See Transcripts of Proceedings and Documents of the International Military Tribunal for the Far East, p. 1358. 19  See Transcripts of Proceedings and Documents of the International Military Tribunal for the Far East, p. 2512.

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witness (i.e. the party executing the direct examination) could protest against those unimportant or irrelevant questions during the cross examination, and ask the court to order the executor to revoke the questions or to order the witness to refuse to answer the questions.20 Because the court announced restrictions on cross examination, although it remained the most concentrated, the most intense, and the fiercest stage of the struggle for both parties during the witness testifying procedure, the time it consumed was greatly reduced. From the point of view of accelerating the trial, the measure taken by the court should be regarded as a “revolutionary” measure of great significance. It must be pointed out that although the cross examination had to be limited to the main problems mentioned by the witness during direct examination, there was one exception, and that was the attack on the credibility or personality of a witness. That attack was not expressly permitted in the Tokyo Charter, procedures or resolutions of judges’ meeting of the International Tribunal for the Far East, but in fact due to the habitual prejudice of the common law system, the court often adopted a tolerant attitude toward that problem, although that kind of problem had no direct relation to the testimony of the witness, nor was it “the main problem” mentioned in the testimony. An attack on the credibility or personality of a witness was obviously beyond the provisions of the scope of the cross examination, but during the cross examination of the Tokyo Trial, the executor often put forward those kinds of questions, and the court did not stop him. For instance, when the former Japanese army major general Tanaka Ryukichi testified in court for the prosecution, an American defense counsel asked him during the cross examination: “Did you have mental disease?” He also asked him, “Have you been promised by the prosecution if you make a statement that is favorable to them, they will give you an inviolable right and not prosecute you as a war criminal?” Again, in the cross examination of the prosecution witness Haut, the American defense counsel asked, “Did you get paid for participating in the trial?” He explained, “According to our American experience, we know that there is no better way to damage the 20  During the cross examination, the executor stood in front of the platform and frequently asked questions of a witness sitting in a witness box. The party providing the witness (usually the original executor of the direct examination, or another person) sat near the executor of the cross examination. When the executor of the cross examination asked inappropriate questions, he could immediately go to the platform and protest or apply to the court. In that situation, he was like the witness’s “protector” or “guardian”.

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witness’s credibility than pointing out that the witness has gained material benefits.” Again, former emperor of Manchukuo Puyi testified for the prosecution for several days. When his testimony came to an end, the Japanese defense counsel finally asked such the question: “Do you know the China government has listed you as a number one traitor and lists you as wanted?” Such examples did not occur infrequently. Although they did not encourage attacks on the credibility and personality of the witnesses, the Tribunal for the Far East did not take any effective measure to stop questions that were totally beyond the scope of direct examination. As noted above, that was undoubtedly influenced by the tradition of British and American courts, because in British and American courts, personal attacks on the witness in order to destroy his credibility and reputation were allowed during the cross examination. That was done only to reduce the evidentiary value of the testimony and the court’s confidence in the witnesses. Another characteristic of the cross-examination in the Tokyo Tribunal was that the cross-examiner not only could use his documents to question the witness, but also could immediately request the Tribunal to admit his documents as formal exhibits after such use, and to have them numbered and filed by the clerk. For example, the Japanese defense counsel presented a letter written by Puyi to defendant Minami Jirō (the Japanese Army Minister at the time) to ask for help, in an attempt to refute Puyi’s statement during the direct examination, the establishment of Manchukuo was completely handled by the Japanese warlords. He himself was absolutely passive and had no freedom, and he expressed no opinion. The letter was immediately formally presented to the court by the defense counsel as an exhibit and was accepted by the court, although its authenticity caused great controversy both inside and outside the court. Among more than 4300 written exhibits formally accepted and registered by the Tribunal for the Far East, a considerable part was put forward during the process of cross examination of the witnesses. According to the theory of common law, cross examination was particularly important in the witness program. Without cross examination, the value of the witness testimony was very weak. If a witness made irresponsible remarks or spoke in a wild disorderly manner during the direct examination, he would surely be “beaten black and blue” by the other party during the cross examination. Yet, if a witness told the truth with personal experience and abundant evidence during the direct examination,

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he would be in the right and self-confident, and would fluently answer the questions raised by the other party during the cross examination, without giving any opportunity to be utilized by the other party. As the saying goes, “True gold does not fear fire”. In the trial of the Nanjing Massacre, the Chinese and Western witnesses who testified in court were almost all witnesses of that type. Their testimony was true, with a firm attitude, although the Japanese and American defense counsels of defendants racked their brains to ask the witnesses many strange and eccentric questions during the cross examination, they all gave “powerful counterattack” one by one, leaving the defense counsels in an awkward position. As a result, the defense counsels had no choice but to retreat in the face of difficulties and stop the cross examination. As a way to test out the testimony, cross examination gives no cause for much criticism, in theory. However, in practice, it was a waste of time and manpower, particularly for such huge and complicated cases of the trial of the International Tribunal for the Far East. With hundreds of witnesses appearing in court, adhering to the system of cross examination consumed a lot of time and manpower, and prolonged the entire trial. Because cross examination could not be replaced by written statements, it was not, and could not, be agreed by both parties in advance. Thus, it had to be carried out through the use of verbal questions and answers, and all the questions had to be answered. Those questions and answers had to be interpreted immediately in the public trial (Japanese to English, English to Japanese, or to both English and Japanese if the witness spoke a different third language). Thus, it took more than twice as long as the question and answer itself. In addition, prosecutors and defense counsels often had disputes regarding “whether the question is beyond the scope of the testimony” after the question was raised, and the court had to make a ruling on the dispute. All those issues were very time-consuming. For example, when Nanjing’s former Defense Minister Chin Teh-Chun came to testify in court, the reading of his written testimony during the direct examination only took one or two hours, while during the cross examination, defense counsels questioned him for more than four days. Again, Puyi, former emperor of Manchukuo, testified in court for a total of eight days, while the cross examination by defense counsels in turn took more than seven days. It was estimated that for nearly two years of public hearing in the International Military Tribunal for the Far East, the cross examination of hundreds of witnesses accounted for more than one-third to one-half of the total trial time.

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4.3.3.3 The Third Stage: Re-direct Examination Re-direct examination was a direct examination of the witness again. Like the first direct examination, re-direct examination was also performed by a representative (the prosecutor or defense counsel) of the party who provided the witness. Generally speaking, the task was carried out by the original executor of the direct examination. Just as the cross examination, re-direct examination was not necessary or indispensable. When the direct examination of the witness was completed, the other party could waive the right of cross examination, and the task of testifying by the witness would come to an end. When the cross examination of the witness by the other party was completed, the executor of the direct examination could also waive the right of re-direct examination, and then the task of testifying by the witness would also come to an end. However, if the party who carried out the direct examination expressed the need for re-direct examination of the witness, he had the right to do so, and the court could not refuse it. There was a strict limit to the range of re-direct examination. In the re-direct examination, the executor could only ask the witness to confirm or clarify questions about the matters involved in the cross examination of witnesses. Any question beyond that scope would be stopped by the court, and the other party could protest. However, if the executor believed it was necessary to ask the witness something new (something that had not been mentioned in the original direct examination or cross examination) in the re-direct examination, he could also ask the witness after getting the court’s special permission in advance. However, that situation was rare. Because the main purpose was to clarify some old issues mentioned during the direct examination which had been blurred during the cross examination, but not to introduce any new questions. Therefore, the court would not allow such a request unless it was necessary. 4.3.3.4 The Fourth Stage: Re-cross Examination Re-cross examination was not necessary or indispensable, either. When the re-direct examination of the witness was completed, the other party could waive the right of re-cross examination, and the court would declare that the task of testifying by the witness had come to an end. Re-cross examination was carried out by the party executing the cross examination. Usually, it was carried out by the prosecutor or defense counsel who had carried out the original cross examination.

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There was a strict limit to the range of re-cross examination. In the re-­ cross examination, the executor could only ask the witness questions about new facts or opinions mentioned in the re-direct examination with the court’s special permission. Apart from that, he could not ask any other questions. If the witness did not make any statements about any new issues during the re-direct examination, then the re-cross examination would be for naught. The above are the four stages that a witness who was attending the International Military Tribunal for the Far East could have to go through, as well as the rules that were to be followed by the parties concerned during those stages. It goes without saying that the first stage was for mandatory for each witness to go through. The second stage was experienced by many witnesses. But only a small number of witnesses took part in the third stage, and very few witnesses went through all four stages.21 Only 20 to 30 people experienced the entire four-stage process. In these four stages, the first and second stages were undoubtedly the most important. The first stage was the basis of all the procedures. The second stage was the most intense. For a witness, it was the most ruthless ordeal. For the court, it was not only the most time-consuming part, but also the most controversial occasion, because disputes over the language translation or the scope of the question could occur at any time, and the court had to make an immediate decision regarding those disputes. For observers and journalists, it was much more interesting to hear witness testimony than listen to the legal debate of both parties or the reading of exhibits. When those “special characters” came to testify in court the public gallery was not only very crowded, but news reports were also very 21  Among the 419 witnesses appearing in court, 16 of them (including Tō jō Hideki, Araki Sadao) were defendants who appeared in the Tribunal for the Far East as witnesses. According to Article 9 Item (d) of the Tokyo Charter, the defendant may defend himself, or the lawyer can defend him, but the he could not have both. Because all the defendants in the Tribunal for the Far East had lawyers to defend them, they could not defend themselves. Therefore, they (16 defendants including Tō jō Hideki, Araki Sadao) all appeared in court as “witnesses” to face the trial. There were nine defendants who refused to testify in court, drawing on the principle of voluntary witness. Those nine accused were Hiranuma Kiichiro, Hirota Koki, Doihara Kenji, Umezu Yoshijiro, Kimura Heitaro, Sato Kenryo, Shigemitsu Mamoru, Hoshino Naoki, and Hata Shunroku. Although they appeared in court every day, they never made any speeches in the court, only sat quietly on the dock. Some people said that those nine accused defendants were quite cunning because they did not want to be “self-defeating” or “asking for trouble”.

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active. Those “special characters” included Puyi, former emperor of Manchukuo; Qin Tiechuan, the then mayor of Beiping in the Marco Polo Bridge Incident; Wang Lengzhai, the mayor of Wanping; Powell, the editor in chief of the Millard’s Review; Richardson, the admiral of the United States; British Colonel Wilde; Tanaka Ryukichi; nicknamed “soldier freak”; and the once arrogant defendants Tō jō Hideki, Koiso Kuniaki, Araki Sadao, Kido Koichi, Minami Jirō , Usami Rokuro, Itagaki Seishirō , Hashimoto Kingoro, Matsui Iwane, among others. It was said that a ticket sometimes sold for hundreds or even more than a thousand Japanese yen on the black market. During the long Tokyo trial, world news reports were full of bustling situations of testimony and examination of witnesses. As for the filing of court testimony and the legal debate between the two parties, journalists were less interested and thus made fewer reports. The witness testimony and examination procedures took the most time during the trial of the International Military Tribunal for the Far East Court. It was estimated that it took more than 50% of all the public hearing time, most of which (about 70% to 90%) was used for the stage of cross examination (second stage).

4.4   An Affidavit from a Witness Who Was Not Appearing in Court and the Defendant’s Confession During the entire course of the trial, the International Military Tribunal for the Far East received or accepted 4336 exhibits, among which 2734 were provided by the prosecution, and 1602 were provided by the defense. During the entire course of the trial, 419 witnesses were summoned to testify in court, including 109 “prosecution witnesses” provided by the prosecution and 310 “defense witnesses” provided by the defense. Those people appeared in person in court for oral or written statements during the direct examination, and many were cross examined by the other party, some even went through re-direct examination and re-cross examination. Their testimony would be considered as evidence by the court, and there was no problem. However, there was another additional type of witness, those who were unable to come to court because of health problems or job duties, or had no intention of coming to court at all but were willing to provide written testimony for the prosecution or the defense to replace their oral ­statements in court. This written testimony was different from the ordinary

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written exhibits. It had to be made after a solemn oath in court or in the presence of a judicial officer, and signed or sealed by the witness. That kind of solemn written testimony was called an “affidavit” in common law courts, which meant that the honesty and accuracy of its contents were guaranteed by the oath of the witness, and if there was any false or deceptive content, the witness would be severely punished for breaching his oath (Fig. 4.2). Article 13 Item (c) Paragraph 3 of the Charter of the International Military Tribunal for the Far East stipulates that the Tribunal must admit “an affidavit, deposition or other signed statement”. That provision was very lenient, and a solemn written testimony in the form of an affidavit should be accepted by the Tribunal without question. However, because many judges, particularly the President, had the traditional prejudice of the common law system toward the affidavit, and fierce opposition from defense counsels, that problem caused controversy among the judges, and delayed the trial for several days before it was settled. According to the tradition of the British and American courts, generally speaking, the testimony of the witness had to be made in a public trial, and had to be cross examined by the other party (if the other party considered it necessary to have cross examination), before it was adopted by the court. Therefore, the party providing the witness had to ensure that the court could summon the witness to appear in court in person, otherwise he would lose the witness’s qualification, and written testimony could not replace physical presence in court. There were several exceptions to that traditional rule, but the scope of those exceptions was strictly limited. For example, a witness giving written testimony originally promised to appear in court, but he died or was seriously ill and could not appear in court during that period. In that case, the court could adopt his written testimony.22 Also, the written testimony was 22  Among the 419 witnesses appearing in court, 16 of them including Tō jō Hideki, Araki Sadao were defendants who appeared in the Tribunal for the Far East as witnesses. According to Article 9 Item (d) of the Tokyo Charter, the defendant may defend himself, or the lawyer can defend him, but the he could not have both. Since all the defendants in the Tribunal for the Far East have lawyers to defend them, they could not defend themselves. Therefore, they (16 defendants including Tō jō Hideki, Araki Sadao) all appeared in court as “witnesses” to face the trial. There were nine defendants who refused to testify in court, drawing on the principle of voluntary witness. These nine accused were Hiranuma Kiichiro, Hirota Koki, Doihara Kenji, Umezu Yoshijiro, Kimura Heitaro, Sato Kenryo, Shigemitsu Mamoru, Hoshino Naoki and Hata Shunroku. Although they appeared in court every day, they never

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Fig. 4.2  Puyi’s testimony

indeed made in the presence of the judge and was certified by the judge himself; or the written testimony was made in the presence of the other party or his representative lawyer, and the witness’s willingness to testify in court in the future when necessary was ensured. The court would consider accepting only such written testimony. Except for that, the courts were discriminatory with regard to any written testimony. That was a deep-­rooted prejudice of the British and American courts, the reason was that they paid too much attention to the role of cross examination and doubted the value of the testimony of witnesses who could not undergo cross examination. made any speech in the court, only sitting quietly in the dock. Some people said that these nine accused were quite cunning, because they did not want to be “self-defeating” or “asking for troubles”.

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That tradition of the British and American courts had long been broken in World War II because the “rules of procedure” promulgated by the United Kingdom in 1940 clearly allowed prosecutors to use the written statements of witnesses as evidence. Written testimony had been widely adopted within the US military courts. However, several Anglo-American judges in the International Military Tribunal for the Far East could not rid themselves of that old prejudice, causing a heated debate between the Anglo-American and non-Anglo-American judges. Of course, the non-­ Anglo-­American judges won the dispute because they had an indisputable basis from the articles of the Tokyo Charter. Article 13 of the Tokyo Charter had the general provision that “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.” Paragraph 3 Item (c) of that Article also clearly stipulated that the Tribunal has to admit “an affidavit, deposition or other signed statement”. Although the debate among the judges had been solved, American defense counsels still rattled away at the opposition in open court, thus causing a debate between the President and the American counsel. This is how it occurred. On July 3, 1946, less than two months after the public trial began, on behalf of the prosecution, Australian prosecutor Mansfield presented ­several abstracts of written testimony (affidavit) of witnesses who personally experienced the brutal atrocities of the Japanese army across the Pacific battlefields, and asked the court to accept them as evidence. He told the court: “Most people who write these affidavits are scattered in various countries, and we do not intend to call them to court. We only hope to present their affidavits to the court in accordance with the procedures provided in Article 13 Item (c) of the Tokyo Charter.” After Mansfield finished his explanation, American defense counsel Rogan ran to the floor, grabbed the speaker, and loudly protested. He said, “Not calling these witnesses to court and using their written testimony as evidence, was in conflict with the long established law of ‘the inalienable right of cross examination’ of Anglo-Saxon countries.” The President, Wilbur, immediately refuted him and said, “Yes, it is indeed the usual rule, but we are neither bound by the law of evidence, nor bound by the usual trial procedure. What we should abide by in our work is the Tokyo Charter, and this rule is not included in the Tokyo Charter.”

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The President made that ruling on the spot, and was approved by the majority of the judges. Because, as pointed out above, the question had been discussed many times at the judge’s meeting, and decision had been made. The President had no doubt, and dared to retaliate toward Rogan at once. Rogan was unwilling to give up and insisted on protesting, the President said severely to him: “As for any ruling made by this Tribunal … No court or government has the right to review it.” Nevertheless, the large number of affidavits regarding atrocities by Japanese Army presented by Mansfield on behalf of the prosecution was not accepted into the trial for technical reasons. The first time the court formally adopted written testimony or affidavits of witnesses who did not appear in court and did not have cross examination was on August 29, 1946 (see Chap.1, Footnote 1). Since that time, both parties had filed many such affidavits in court to replace witnesses’ testimony in court. By the end of the trial, the total number of affidavits was as many as 775. The 775 affidavits were part of the 4336 exhibits accepted by the Tribunal. Each document was made up of a uniform number in the order of acceptance time, and the acceptance procedure was in complete accordance with the general acceptance procedure referred to in section two of this chapter. What is worth mentioning here is the true attitude of President Wilbur. Because Wilbur (an Australian) was a senior judge educated in the c­ ommon law system, he could not completely rid himself of the traditional prejudice of the British and American courts, and hostility toward, or contempt of a witness’s testimony without cross examination was one of those types of prejudices. However, because he was a representative of the court, and the Tokyo Charter and the resolutions of the judges’ meeting clearly allowed adoption of that testimony, in open court he had to righteously defend the acceptance of the testimony, or even had to rebuke the protestors in a loud voice and with a stern expression. Although, in his heart, he was deeply skeptical about the evidential value of such affidavits from witnesses not appearing in court. Therefore, when he accepted that type of evidence, he always added “We accept it, regardless of its value”, or “It is accepted under normal conditions”, which meant that the evidential value needed to be evaluated in the future. Those unnecessary words from the President were enough to show his unwillingness, but legally there was not much

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weakness in his statement, so it would not be suitable for other judge colleagues to protest or criticize. Finally, there was one point to note about the affidavit, that was the difference between it and other exhibits. Among thousands of documents taken as evidence by the Tribunal for the Far East, some were files and archives of government agencies or social groups, some were reports and correspondence from officials or staff, some were private diaries, letters, memoirs, or other writings. There were many types and not limited to one, but those documents shared a common feature, they were already existing documents, not created especially for the trial of the Tribunal for the Far East, and thus their objectivity was strong. When the objectivity was relatively strong, the evidential value was of course relatively larger. The affidavit was different. An affidavit was a testimony made by an author particularly for the benefit of one party at the invitation of that party. It was presented to the court by a representative of the party to replace his statement in court. Although it had the oath of the witness and the guarantees of other ceremonies, it was difficult to avoid the mixture of subjective bias and personal feelings. To test the testimony of witnesses by the other party through fierce cross examination was not applicable in those instances. Therefore, in the view of the judges, particularly those who acknowledge “the inalienable rights of cross examination”, the evidential value of the witnesses not appearing in court was limited and not as valuable as other exhibits or testimony of witnesses appearing in court. That was why the President always had resistance toward the affidavit. The above were the conditions for creating an affidavit, the way it was adopted by the court, and its evidential value. The following discussion is about another type of document, the accused war criminals’ confession. It was mentioned in Chap. 3, Sect. 3.2 “Investigations of war criminals and preparations for prosecution by the International Prosecution Section” that after four arrests of the main Japanese war criminals at the Allied Headquarters, more than 100 Japanese Class-A war criminals were detained in the Sugamo Prison. For many of those war criminals, the International Prosecution Section (which had already been designated as an International Tribunal for the future) had conducted a general initial investigation by the end of 1945. After the promulgation of the Tokyo Charter on January 19, 1946, and the announcement of the judges on February 14th, investigations by the international prosecutor’s office were even more intense, as they knew that the Tribunal would soon be established, and the trial of the Japanese Class-A war criminals would soon

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begin. At that time, their investigation target was not the general class-A war criminals in custody, but more than 20 war criminals specially selected from those war criminals as the defendants of the first case. They concentrated on detailed and in-depth investigations of those defendants. Some criminals were investigated more than five or six times, with dozens of pages of records of oral confessions made during the investigations. Among the 28 Class-A war criminals charged in the International Military Tribunal for the Far East (except for Itagaki Seishirō , Kimura Heitaro, Shigemitsu Mamoru, Umezu Yoshijiro) everyone had a copy of records made by the International Prosecution Section according to their confession in the long-term investigation. Because Itagaki Seishirō and Kimura Heitaro were involved in battles overseas (Itagaki in Singapore, Kimura in Burma), they were arrested by local military authorities when Japan surrendered. They had not been escorted to court until the public trial of the Tribunal for the Far East was held, as a result, the procurator did not have enough time to carry out an investigation and take confessions from them. As for Shigemitsu and Umezu, the procurator had not included them in the list of accused until the last minute before prosecution, so there was no time to carry out an investigation of them (see Chap.1, Footnote 1). Except for those 4 people, the international prosecution section created investigation reports for the other 24 defendants, which were word for word records of questions and answers during the prosecutor’s interrogation of the defendants. How should those 24 investigation reports or records of oral confession be used? Can they be used as exhibits to be adopted by the courts? That issue caused a great deal of controversy between the two parties. During the course of the trial, the International Prosecution Section had attempted to present those records of oral confessions to the Tribunal and requested that the Tribunal adopt them as exhibits. The defense counsel immediately expressed firm opposition for the following reasons: (1) The record of oral confession had not been signed by the defendant himself, nor had it been read to the defendant, so that he could have the opportunity to review and correct it; (2) The record was a pure unilateral action by the procurator, and no court personnel or defense counsel were present during the investigation; (3) Such investigation had only been conducted with some defendants and not all defendants (such investigations had not been conducted with Itagaki and three other defendants). Therefore, it was not fair and equal to those defendants if those records were adopted as documents of evidence. Because of those shortcomings in

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the investigation, the defense insisted the court should refuse to adopt them as exhibits. The issue had also caused controversy among the judges. Most non-­ Anglo-­American judges generally considered that acceptable because the Tokyo Charter clearly stipulated that “The Tribunal shall not be bound by technical rules of evidence … shall admit any evidence which it deems to have probative value.”23 Because the records of the oral confessions of defendants during the investigation had been made by the prosecution after a period of hard work, they could not be regarded as having no evidential value at all. However, the Anglo-American judges did not believe that to be so. Most of them had technical prejudice of evidence law from the common law system, believing that those investigation records were neither in conformity with the specifications of the general affidavit, nor were they made by defendants under adequate “protection”, thus unconditional adoption was not appropriate. The result of the judges’ argument was the decision to adopt a neutral approach: (1) One could not request the court to adopt the records of an oral confession of each defendant as a whole as exhibits; (2) If the defendant appears in court to testify, he could voluntarily admit that the whole content of the record was correct, so that it becomes part of his testimony; (3) If the defendant appears to testify in court but refuses to admit all the contents of the records, then the prosecutor can make full use of the material on record to force him to admit so during the cross examination, otherwise, he will land himself in a state of contradiction and confusion. That was the Tribunal’s ultimate way of dealing with the records of the defendants’ oral confessions. However, it was entirely up to the defendant himself to decide whether he would appear in court to testify or not. Because although the court had the right to approve the list of witnesses made by both parties and to assist both parties in summoning the witnesses, it had no right to compel any witness to appear in court. The Hatano event mentioned earlier is an example.24 The defendants did not defend themselves (they were defended by defense counsels), and some defendants (nine defendants including Dohihara, Hirota, Hiranuma, Umezu, Shigemitsu, Kimura, Sato, Hata, and Hoshino) refused to testify in court. During the entire trial, they just  Article 13 Item A in the Charter of the International Military Tribunal for the Far East.  See Sect. 4.3, Subsection 4.3.1 of this chapter.

23 24

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sat in the defendant’s seat every day, without uttering a word, thus the prosecutors did not have any opportunity to cross examine them, not to mention to use their interrogation confessions as materials for cross examination. The defendants were believed to be cunning, because they knew their problems were very complex, and they had admitted too much during the investigation period, if they had appeared in court to testify, they would have been badly battered and embarrassed by the pervasive and aggressive cross examination of the prosecutor. As a result, they would rather not appear in court and keep silent. The International Prosecution Section then had almost no way to use the records of their oral confessions. As for the 16 defendants who volunteered to testify as “defense witnesses” (Tō jō Hideki, Koiso Kuniaki, Araki Sadao, Itagaki Seishirō , Minami Jirō , Muto Akira, Oka Takazumi, Shimada Shigetaro, Oshima Hiroshi, Shiratori Toshio, Togo Shigenori, Kaya Okinori, Suzuki Teiichi, Hashimoto Kingoro, Kido Koichi, Matsui Iwane), some of them wanted to take the opportunity to justify themselves, trying to wash away or mitigate their guilt; some wanted to be in the limelight, preach about their crimes, glorify themselves, and pretend to be “national heroes”. Tō jō Hideki was the most prominent of the latter. He volunteered to testify in court, and he secretly, shamelessly added a page in front of the written testimony used to replace the direct examination, “this is a historical document”. When the court noticed his “conspiracy”, the President immediately reprimanded him. For those defendants willing to testify in court, the International Prosecution Section refused to be lenient. During the cross examination with those defendants, prosecutors forced them to recognize at least some of the main facts of their confession from the investigation period. If they tried to deny or replace the old statement with a new one, the prosecutors could accuse them of inconsistency and self-contradiction, thus placing them in a disadvantageous position. From that mentioned above, it was clear that the International Prosecution Section had used the records of oral confessions during investigation of most of the defendants, although for a small number of defendants those records were almost completely useless. It was a pity that as a major preparatory work before prosecution, the International Prosecution Section had made such an effort to create the investigation records; however, because of the shortcomings (such as failing to read to the accused, without their signature, etc.), they were not adopted by the Tribunal as

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exhibits. As has been repeatedly pointed out, because the International Military Tribunal for the Far East adhered to “evidentialism”, any document not officially adopted by the Tribunal or any testimony not in the trial record, could not be used by the two parties in their summary and debate, or in the Tribunal’s final judgment.

4.5   Criticism of Court Proceedings The complexity of the interrogation procedure was undoubtedly one of the main reasons why the trial of International Military Tribunal for the Far East lasted such a long time. There was a great deal of contradiction in the Tokyo Charter itself either in terms of its spirit or specific articles related to the provisions on interrogation procedures. On the one hand, it called for a “speedy” trial of Japanese War criminals. Therefore, Article 12 of the Tokyo Charter (Conduct of Trial) provided that “The Tribunal shall (a) confine the trial strictly to an expeditious hearing of the issues raised by the charges; (b) Take strict measures to prevent any action which would cause any unreasonable delay and rule out irrelevant issues and statements of any kind whatsoever.” Article 13 (Evidence) stipulated that “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.” The purpose of those articles was undoubtedly to speed up the trial. On the other hand, to make the trial “fair”, the Tokyo Charter also stipulated many complicated rules and regulations, thus hindering a speedy trial. Those regulations were not required or necessary in general fair trials, but were particular to the common law system. For example, the trial procedures, and the meticulous division of stages of direct examination and cross examination stipulated in Article 15 of the Tokyo Charter, were some extremely cumbersome traditional regulations from the common law system. Because the Tokyo Charter and the rules of procedure of the Tribunal were drafted by experts on the common law system, and most members of the Tribunal had a common law educational background, therefore, not only in the provisions of court proceedings, but also in the actual implementation, the influence of Anglo-American procedural law had always governed the entire trial process of the Tribunal for the Far East, either

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visibly or invisibly. As we have repeatedly pointed out, the rules of procedures of the common law system, which contain formalism, subjectivism, and many historical remnants, was one of the most complicated and most cumbersome legal systems in the world. As stated above, there had always been a major contradiction in the trial procedures of Tribunal for the Far East. That contradiction can also be said to be the contradiction between purpose and method. On the one hand, the Tokyo Charter empowered the Tribunal to act according to circumstances for the purpose of a speedy trial; on the other hand, many rules and regulations adopted by the Tribunal, and the prejudice on trial procedures of the common law judges, posed many obstacles and stumbling blocks in reaching that goal. Indeed, to solve or reduce that contradiction, the Tribunal had taken some measures during the trial. For example, one of the most prominent measures was the use of written testimony from the witnesses rather than oral questions and answers under direct examination. Another important measure was to limit the questioning of witnesses during cross examination to the main issues mentioned in the testimony of the witnesses under direct examination, not out of that range. It was a wise move for the Tribunal to take the two measures at the earlier stage of the trial. For the trial procedure of Tribunal for the Far East, those were indeed ­“revolutionary” changes. Considering that the Tribunal had more than 400 witnesses, it was not difficult to imagine that if the court did not take those two measures at the earliest stage, the Tokyo Trial could have been six months or even one year longer than it actually had been. However, the Tribunal’s measures to achieve a “speedy trial” were far from enough. During the trial procedure, it did not fully exercise the broad powers endowed by Article 12 and Article 13 of the Tokyo Charter. Circumstances change with the passing of time. Now we can objectively review some of the shortcomings in the trial procedures of the Tribunal for the Far East. If those shortcomings had been corrected at an early stage, the time spent on the Tokyo Trial could have been reduced considerably, while its political influence could have been greatly enhanced. It must first be pointed out that the interrogation procedure was too lenient toward the defense, even excessively lenient. To make the trial fair and reasonable, the defendant’s right to a defense needed to be respected. However, for the abuse of that right, the court had to prevent or stop it in time, but not indulge it or let it develop. However, the court had done very little in that respect. For example, the Tokyo Charter provided that each

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defendant had the right to choose his own counsel, but did not specify how many counsels each defendant could have and whether he could have counsels of varying nationalities. In practice, the Tribunal allowed each defendant to have an American counsel, while placing no limit on the number of Japanese counsels. Some defendants, such as Shimada Shigetaro, had up to eight defense counsels. Other defendants also had five or more for each of them. Each of the defendants practically had a small defense group, while those small groups came together to form a large team, great in strength and impetus. During the trial, those counsels showed off numerous artful tricks to detract attention. They tried to delay the trial by making use of the Tribunal’s lenience, particular some American counsels who kept pestering the court and wasting time in court trials by using some minor problems on the rules of procedure of the common law system. Some American counsels, such as Blakeney, made threatening gestures and acted outrageously in court, frequently slandering the Soviet Union or even their own homeland. They imagined that the tense relationship between the Soviet Union and the United States at that time might lead to the Third World War, so they thought that if the Tokyo Trial were to be delayed as far as possible, Tribunal for the Far East would naturally be dismantled. The Tribunal did not often resort to tough or powerful measures against the disturbances and delays committed by the defense counsels. Indeed, according to the power conferred on it by the Tokyo Charter, the Tribunal did not permit the appearance of two US lawyers in court, thus making the defense counsels less aggressive.25 But, in general, the court’s measures in that aspect were unable to meet the actual needs of the situation. To maintain the appearance of “fair trial”, it did not stop the numerous attempts made by the defense counsels to delay the trial from time to time, nor did it punish their use of the courts as a forum to promote the fallacy of the accused and the absurd behavior of slandering the Allied countries. That showed the Tribunal’s excessive leniency toward the accused. In accordance with the Tokyo Charter, the defendant would not be able to defend himself if he had a lawyer to defend him.26 The provision appears to be a limit to the defendant’s right to defense, but it was actually an 25  According to the provisions of Article 12 Item (c) of the Tokyo Charter, the International Tribunal for the Far East denied the appearance of two American defense counsels, Smith and Kenning Han. As for why and how they were suspended from their duties, see Chap. 2, Sect. 2.5 of this book. 26  Article 9 Item (d) of the Charter of the International Military Tribunal for the Far East.

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opportunity for the defendant to escape direct trial. Indeed, they could testify in the capacity of “defense witnesses”, but the testimony was entirely based on the principle of voluntariness, and the scope of testimony was limited. Therefore, those defendants did not register as witnesses at all. As a result, the court and the prosecutor could not have any direct contact or communication with them. Even for those defendants who volunteered to give testimony in court, the questioning and the cross examination by the prosecution would be confined to the main issues from the direct examination, rather than a systematic thorough investigation or interrogation of all of their crimes. The rule that the defendant could refuse to speak in court was also based on a long-standing tradition of the common law system, the rule against self-incrimination.27 In accordance with that rule, any criminal defendant had the right to refuse to answer any question that may put him in a criminal position. Thus, it gave him the right to refuse to speak at all during the trial. The original intent of that rule was to protect the defendant from making any confession against himself because of his own ignorance, fear or negligence, or as a result of being threatened and oppressed by the court and the prosecution. Because the defendant had the right to refuse to speak at all, in theory those cruel and barbaric phenomena of “confessing to false charges under torture” and “extracting confession by torturing” of course would not occur. The rule of protecting the accused against self-incrimination was peculiar to the common law system and did not exist in many other countries in the world as it does not really conform to the principle of a “fair trial”. Application of that rule to ordinary, simple domestic criminal cases was still open to debate, but its application to such huge and complicated international cases, such as the case tried at the International Military Tribunal for the Far East, was very inappropriate. It was difficult to find anything out about many situations without direct questioning the defendant, or they would get half the results with double the effort. As for the accused feeling threatened or oppressed, it was inconceivable at the International Military Tribunal for the Far East. However, the Tribunal 27  A criminal defendant had the right to refuse to make a confession or statement in court that could portray him as guilty. Therefore, during the trial, he could refuse to answer any questions raised by the prosecution. That is a very important rule in the common law system that has always been used to protect human rights. The United States has also included this rule in the amendment to the constitution as a sacred and inviolable right of citizens.

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had unexpectedly adopted that obsolete rule of the common law system, which had damaged its ideal of a “quick and fair” trial. Apart from the blind application of the British and American law systems and the excessive leniency toward the accused, it was difficult to find any other explanation. Apart from excessive leniency toward the accused, a second drawback of the court trial procedure was the fact that the list of witnesses appearing in court had not been carefully examined. It was true that any witness who was invited to testify in court would be determined by the two parties and after the list was created, they would require the court to approve and summon the witnesses. But according to the Tokyo Charter, when examining the list of witnesses, “the court shall order the person concerned to state, in addition to the location of the witness, the facts proposed to be proved by the witness and the relevancy of such facts to the defense”.28 If the court was dissatisfied with those statements, it had the right to refuse to summon certain witnesses. However, the court did not do so. It rarely carefully examined witnesses, and almost approved all witnesses the parties requested be summoned. During in the course of the trial, the endless flow of witnesses appearing to testify in court became one of the most prominent phenomena, consuming the most time. In total, the number of “prosecution witnesses” (109) provided by the prosecution and the number of “defense witnesses” (310) provided by the defense amounted to 419, which was a record breaking in world judicial history. It is worth mentioning that the number of “defense witnesses” appearing in court of the Tribunal for the Far East was almost three times that of the “prosecution witnesses”. That may also be a manifestation of the court’s excessive leniency toward the accused. However, most unfortunately, in that vast number of defense witnesses, those who had real value only accounted for a small number. The testimony of most of them was of no great importance, and a large part of it was rather baffling and irrelevant. Most of those people were the defendants’ relatives, friends, family, or colleagues who were nominated by the defense counsels to come to court to say something nice about the defendants. They knew nothing of the key questions of the case. In dealing with the prosecutors’ cross examination, they either stared dumbfounded or talked nonsense. The witness’s testimony was of no value at all. The court finally had to admit: “as far as the court’s experience was concerned, most of the defense witnesses have  Article 9 Item (f) of Charter of the International Military Tribunal for the Far East.

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no intention of facing the difficulties. They take long vague subterfuge to deal with the difficulties, it will only cause mistrust.”29 If the court had carefully examined all the items in the application one by one (such as the relationship between the witness and the defendant, the witness’s qualifications and experience, the fact he could prove, relationship between the fact and the case, etc.) when the parties applied for the summons of witnesses, it would not have been difficult for the court to find that it could refuse to approve at least one-third or even one-half of all defense witnesses. If the court had done so, it could not only have saved a lot of time during the trial, but also have avoided many unnecessary difficulties and confusion in the evaluation of evidence later, and could have increased the authority, trial quality, and political influence of the court. Unfortunately, the court did not do so. It always adopted a formalism and laissez faire attitude during the examination and approval of the list of witnesses. That was definitely a major shortcoming in the trial procedures. The third drawback of the court trial procedure was the failure to make full use of the “commissioned judge” and the “trial out of court”. According to the Tokyo Charter, the Tribunal had the power “to appoint officers for the carrying out of any task designated by the Tribunal, including the power to have evidence taken on commission”.30 The method of appointing officers to take evidence out of court was used in the judicial systems of many countries. Usually the court sends a judge, called the “commissioned judge”, along with a clerk, a recorder, and other court staff, and the legal representatives of both parties, to the location of the witness or any other location appointed by the court to take evidence. This could have saved the court’s time for public hearings. The rituals of the “trials out of court” were much simpler than the formal trial in court, but could also achieve the purpose of examining the witness and taking testimony. In the trial of the German chief war criminals in the Nuremberg International Military Tribunal, taking evidence by the judge on commission outside of the courtroom had been used many times, which saved much time for the Tribunal’s formal trial. That might be one of the reasons 29  Chapter 1 of The Verdict of International Military Tribunal for the Far East I translated by Zhang Xiaolin, published in the 1950s, pp. 9–10. 30  Article 11 Item E of Charter of the International Military Tribunal for the Far East.

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why the Nuremberg Trial ended quickly, in about ten months. Unfortunately, in the entirety of the trial of the International Military Tribunal for the Far East, that simple method expressly provided by the Tokyo Charter was adopted only once, in 1947. It was used with a witness (former Army lieutenant general Ishihara Kanji) who was seriously ill and could not move. The place of trial was Sakata City Yamagata-ken, Ishihara’s hometown. Except for Ishihara, the other more than 400 witnesses all appeared in court, and their hearing was held in a formal public hearing in the Tokyo court. As already pointed out, among the hundreds of witnesses appearing in court for the Far East, for about three-fourths of the “defense witnesses”, most of their testimony was of no great importance, with a large part being rather baffling and irrelevant. The Tribunal did not exercise its power to refuse approval. If the Tribunal had adopted the simple method of taking evidence by the judge on commission outside the courtroom for them, or even some of them, a lot of time could have been saved in the open court hearing. But the Tribunal did not do so at all, and that was a shortcoming of its interrogation procedure. Another shortcoming in the trial procedure of International Military Tribunal for the Far East was that the number of people allowed to cross examine witnesses was too large, without any limits. The cross examination of witnesses was the most time- and energy-­ consuming part of the interrogation procedure. Unlike the direct examination, the cross examination could not be replaced by a written alternative, and had to be carried out by oral questioning. The questions and answers between the people carrying out the cross examination and the witness had to be interpreted immediately in the open court. That was highly time-consuming, and often the question of whether the interpretation being correct was subject to arbitration by the language panel of the tribunal. Additionally, the scope of the cross examination (i.e. whether a question put to the witnesses was related to his main testimony) often caused argument between the two parties, which needed a court ruling to be solve. Thus it can be seen that the cross examination was indeed, among other trial procedures, the most time-consuming part and most likely to cause disputes. The Tribunal should have therefore tried to limit the cross examination based on the powers entrusted to it under the Tokyo Charter. However, because the majority of the common law judges of the Tribunal had

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excessive superstition for the effect of cross examination and an unrealistic understanding of the meaning of a “fair trial”, the Tribunal did not take any measures to limit the cross examination, except for one decision made to limit the questioning of witnesses in cross examination to the main issues mentioned in the testimony of the witnesses in direct examination, but not out of that range. During the trial in court, the violation of those resolutions was rarely stopped or severely punished in time. Moreover, the Tribunal did not put any limit on the number of people carrying out the cross examination. As a result, a witness could be cross examined by several lawyers, several times after undergoing direct examination. That was a very unreasonable measure, which not only made the witnesses terribly fatigued after being questioned successively, but also brought up unexpected issues and caused chaos, making the main point of the testimony ambiguous and equivocal, not to mention the large amount of trial time wasted by the tediously long cross examinations. Indeed, for the so-called defense witness, in most cases the International Prosecution Section only sent a prosecutor to carry out cross examination, all the questions put to him were planned and raised by the prosecutor. Only in exceptional circumstances did another prosecutor ask him some additional questions, which was extremely rare during the entire trial of the Tribunal. For the so-called prosecution witness, that was not the case at all. After the direct examination, each of the defense counsels (including an American lawyer and Japanese counsels) had the right to cross examine the witness. That caused great confusion and created repetition. Not only did the witness suffer unnecessary stress, but also much of the trial time wasted in vain. For example, when the emperor of former Manchukuo Puyi appeared in court to testify for the prosecution, the direct examination only took half a day, while the cross examination took over seven days, involving up to seven to eight defense counsels. The situation was similar in the cross examination of many witnesses including Chin Teh-­ Chun, Liebert, Wilde, Richardson, and Tanaka Ryukichi. It is not difficult to imagine that if the cross examination of Puyi had been carried out by one defense counsel in a unified way, it would have saved at least half or even two-thirds of the time, and it could also have improved the quality of the cross examination. Because there was no limit on the number of people carrying out the cross examination, with one excuse or another, the defense counsels would raise questions to the prosecution witnesses, one after another. Although

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their questions were often repeated or meaningless, and were often protested by the prosecution and resisted or reprimanded by the court, nevertheless, their purpose in wasting time and delaying the trial was achieved, at least in part. The Tokyo Charter ensured that the accused or the counsel for the accused could examine each witness who gave testimony,31 but it did not mean that the defendants’ right to ask the witnesses was not restricted. The court had full power to stipulate in its rules of procedure or resolution announced in the form of a court order that any witness provided by any party could be cross examined by only one representative of the other party (a prosecutor or a defense counsel). All the questions addressed to the witness were collected by that representative and put forward to the witness in a centralized and unified way. That way, the parties could not only keep the principle of equal treatment and enable the court to save a lot of time, but also could prevent the trouble and chaos caused by the repetition during the cross examination. Yet the court did not do so. That was another shortcoming of the interrogation procedure. Those mentioned above are some of the more important and prominent shortcomings of the International Military Tribunal for the Far East. The relatively minor flaws in the details of the trial proceedings were not mentioned here. The shortcomings, as was pointed out earlier, were mainly influenced by the procedural rules of the common law system. Although the Tokyo Charter stipulated a “quick” trial and punishment of the defendants, and “to adopt and apply to the greatest possible extent expeditious and non-­ technical procedure”, but in the provisions of the trial procedure, the Charter had paradoxically adopted some complicated and cumbersome systems and rules peculiar to the common law system. In practice, those systems and rules further show the color of the common law system, because most of the members of the Tribunal for Far East came from a common law system or had a common law educational background, thus their interpretation and application of those systems and rules could not be separated from the traditional prejudices of the common law system. That is the reason why the trials of the Tribunal for the Far East could not be rapid, convenient, and straight to the point; that was also the reason why the Tokyo trial dragged on for two and a half years.

 Article 15 Item E of Charter of the International Military Tribunal for the Far East.

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