Far East war crimes trials

Far East war crimes trials, were conducted by the Allies in the Far East following the defeat of Imperial Japan. They had been foreshadowed in the Potsdam Proclamation of 26 July 1945 (see TERMINAL) which declared, ‘stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners’. However, the scope of the trials was broadened when, on 19 January 1946, General MacArthur, the supreme commander for the Allied Powers, announced the formation of the International Military Tribunal for the Far East (the IMTFE, in Tokyo), to try Japanese charged ‘with offenses which include crimes against peace’. The IMTFE's writ reflected the Allied decision, reached at the London conference that previous summer, that the post-war trials in Europe and the Far East would involve not only conventional war crimes, including in particular brutal atrocities against Allied prisoners-of-war, but also the more fundamental crime of waging aggressive war itself.

Thus, there were two kinds of war crimes trials in the Far East: the Tokyo trial, the Pacific counterpart to the Nuremberg trials, and a great many regional hearings that were mainly concerned with conventional war crimes.

1. The Tokyo war crimes trial

The proceedings of the IMTFE, which lasted from 3 May 1946 to 4 November 1948, were held in the former Japanese Army Ministry building in Tokyo. The court consisted of eleven justices. Two of them, Radhabinod Pal of India and Delfin Jaranilla of the Philippines, were from countries which achieved independence after the war. The president of the court, appointed by MacArthur, was Sir William Webb of Australia. The chief prosecutor was Joseph B. Keenan of the USA, who was appointed by President Truman.

Teams of Japanese and American attorneys defended the 28 Japanese military and civilian leaders, categorized as class A war criminals, who were on trial (see Table). The best-known defendant was General Tōjō. The rest included thirteen generals, a colonel, three admirals, five career diplomats, three bureaucrats, one politician, and an ultranationalist ( Ōkawa Shumei) who was soon declared unfit to stand trial for reasons of insanity. During the trial, two of the defendants, Admiral Nagano Osami and Matsuoka Yōsuke, a former foreign minister, died.

While one objective of the Tokyo trial was to punish Japanese élites convicted of war crimes and thereby demonstrate to the Japanese people the authority of the occupation and the justice of the Allied wartime cause, a greater historic purpose was to put an end to war for all time by rendering sacrosanct the principle that waging aggressive war was a crime in international law. In this latter respect the charter governing the Tokyo trial, published on 26 April 1946, was deliberately based on the Nuremberg Charter.

In brief, the Tokyo Charter defined ‘crimes against peace’ to encompass conspiracy to wage, and the waging of, aggressive war, whether or not war had been declared, ‘in violation of international law, treaties, agreements or assurances…’ The charter also covered conventional war crimes and ‘crimes against humanity’, including ‘murder, extermination, enslavement, deportation, and other inhumane acts…or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal…’. In contrast to the regional trials of class B and C war criminals (see below), at Tokyo all the defendants were indicted for having committed ‘crimes against peace’, in addition to the other charges which applied variously in individual cases. Indeed, 36 of the 55 counts comprising the Tokyo indictment pertained to ‘crimes against peace’.

The defence challenged the indictment, arguing that ‘crimes against peace’ and more specifically, the undefined concepts of ‘conspiracy’ and ‘aggressive war’, had yet to be established as crimes in international law; in effect, the IMTFE was contradicting accepted legal procedure by trying the defendants retroactively for violating laws which had not existed when these alleged crimes had been committed. Moreover, the defence insisted that there was no basis in international law for holding individuals responsible for acts of state, as the Tokyo trial proposed to do. Finally, the defence attacked the notion of ‘negative criminality’, by which the defendants were to be tried for failing to prevent breaches of law and war crimes by others, as likewise having no basis in international law.

Far East war crimes trials: Verdicts and sentences

Count	1	27	29	31	32	33	35	36	54	55	Sentence
Key:	Blank – Not indicted on the count
	G – Guilty
	A – Acquitted
	O – Charged but no finding made by the Tribunal.
	* – separate text entry.
	Count 1 – The over-all Conspiracy.
	Count 27 –Waging war against China.
	Count 29 –Waging war against the United States.
	Count 31 –Waging war against the British Commonwealth.
	Count 32 –Waging war against the Netherlands.
	Count 33 –Waging war against France.
	Count 35 –Waging war against USSR at Lake Khassan.
	Count 36 –Waging war against USSR at Nomonhan.
	Count 54 –Ordering, authorizing, or permitting atrocities.
	Count 55 – Disregard of duty to secure observance of and prevent breaches of Laws of War.
Sources: Chart taken from Horwitz, ‘Tokyo Trial’, Appendix C, International Conciliation, No. 465 ( November 1950), p. 584. Minear, R. H., Victor's
Justice: The Tokyo War Crimes Trial (Princeton, 1971) who took it from above source.
Araki Sadao	G	G	A	A	A	A	A	A	A	A	Life imprisonment
Doihara Kenji	G	G	G	G	G	A	G	G	G	O	Hanging
Hashimoto Kingorō	G	G	A	A	A				A	A	Life imprisonment
Hata Shunroku	G	G	G	G	G		A	A	A	G	Life imprisonment
Hiranuma Kiichirō	G	G	G	G	G	A	A	G	A	A	Life imprisonment
Hirota Kōki	G	G	A	A	A	A	A		A	G	Hanging
Hoshino Naoki	G	G	G	G	G	A	A		A	A	Life imprisonment
*Itagaki Seishirō	G	G	G	G	G	A	G	G	G	O	Hanging
Kaya Okinori	G	G	G	G	G				A	A	Life imprisonment
Kido Koichi	G	G	G	G	G	A	A	A	A	A	Life imprisonment
Kimura Heitarō	G	G	G	G	G				G	G	Hanging
*Koiso Kuniaki	G	G	G	G	G			A	A	G	Life imprisonment
Matsui Iwane	A	A	A	A	A		A	A	A	G	Hanging
Minami Jirō	G	G	A	A	A				A	A	Life imprisonment
Muto Akira	G	G	G	G	G	A		A	G	G	Hanging
Oka Takasumi	G	G	G	G	G				A	A	Life imprisonment
*Oshima Hiroshi	G	A	A	A	A				A	A	Life imprisonment
Satō Kenryō	G	G	G	G	G				A	A	Life imprisonment
Shigemitsu Mamoru	A	G	G	G	G	G	A		A	G	7 years imprisonment
Shimada Shigetarō	G	G	G	G	G				A	A	Life imprisonment
Shiratori Toshio	G	A	A	A	A						Life imprisonment
Suzuki Teiichi	G	G	G	G	G		A	A	A	A	Life imprisonment
*Tōgō Shigenori	G	G	G	G	G			A	A	A	20 years imprisonment
*Tōjō Hideki	G	G	G	G	G	G		A	G	O	Hanging
Umezu Yoshijirō	G	G	G	G	G			A	A	A	Life imprisonment

These challenges exposed the highly controversial nature of the Tokyo trial. However, despite their validity and after much legal argument, they were all rejected by the court which upheld the indictment as it stood, on the debatable grounds that various legal precedents existed for ‘aggressive war’, ‘conspiracy’, and the responsibility of individuals for acts of state and negative criminality. This ruling echoed the Allied consensus at the London conference, especially concerning the issue of ‘aggressive war’. Here, the Allies distinguished aggressive war from war waged for self-defence which had been recognized by the 1928 Pact of Paris (see Kellogg–Briand Pact) as the right of every sovereign nation. Yet this consensus itself was rather new. As recently as 1944, it may be noted, the USA, UK, and the Netherlands had judged that it was not a war crime for individuals to participate in the planning and waging of aggressive war.

The Tokyo trial was very controversial for other reasons, too. First, the selection of defendants was somewhat arbitrary in that before the trial 250 Japanese officials had been arraigned on suspicion of war crimes, of whom 28 were indicted as a representative sample of the country's pre-war and wartime leadership. The main criterion used in selecting them was the belief, expressed by one of the prosecution lawyers, that ‘No person was to be included as a defendant unless the evidence used against him was so strong as to render negligible the chances of acquittal.’

Quite apart from the manifest expediency of this criterion, it was arguably inapplicable to certain defendants, such as the former foreign minister Tōgō Shigenori, who was known to have worked assiduously for peace both in 1941 and again in 1945. What is more, certain individuals who might have been expected to stand trial in Tokyo were exempted. The most famous was Emperor Hirohito, in whose name Japan had gone to war. MacArthur exempted him lest his trial provoke widespread Japanese resistance to the occupation. General Abe Nobuyuki and Admiral Yonai Mitsumasa, both former prime ministers, and a number of other key government leaders, were also conspicuously absent.

A second source of controversy concerns the justices. The competency of at least two of them was in doubt, for one was not a judge in his own country (China) and the other, from the USSR, understood neither English nor Japanese, the official languages of the court. As for the principle of judicial impartiality, since the justices all came from countries that had suffered at the hands of the Japanese, they could not have been expected to be unbiased. Two justices were especially open to doubts on this point by virtue of their own experience: Jaranilla had survived the Bataan death march and imprisonment by the Japanese, and Webb had been prominently involved in investigating conventional Japanese war crimes in the New Guinea campaign. At the end of the trial, Jaranilla would stand out among the justices for arguing that the final sentences were too lenient in several instances.

Third, numerous legal procedures used at the Tokyo trial were plainly suspect. To illustrate, the rules of evidence were relaxed to include such indirect prosecution evidence as hearsay, diaries, unsworn statements, affidavits that could not be verified unless witnesses took the stand, and so forth. Then, too, the rules of evidence were applied inconsistently by the court and more often to the advantage of the prosecution than the defence. Another questionable procedure was the practice whereby a simple majority vote of the court would decide the fate of the accused when the final judgement was rendered.

Fourth, the prosecution's endeavour to prove that from the late 1920s onwards the defendants had participated in a grand conspiracy for aggressive war in seeking to dominate the Asian-Pacific region imposed a grossly simplistic interpretation upon the complex history of the pre-war period with which few historians would agree. Besides the fact that it never defined ‘conspiracy’, this interpretation virtually ignored both the many clashes over foreign policy questions which had marked the acute struggle for power within Japan and the essentially ad hoc nature of Japanese expansionism. Moreover, the conspiracy interpretation rigidly negated the distinct possibility that, as Tōjō and other defendants claimed, Japan's decision in 1941 had been to wage defensive war in reaction to American economic sanctions. Instead, the majority of the court all too easily assumed that the right of self-defence could not explain Japanese motives in 1941 or at any other time in the history of the alleged Japanese ‘conspiracy’.

Accordingly, the final judgement found all but two of the defendants ‘guilty of conspiracy to wage aggressive war’ and all of them were convicted on other charges, the number ranging from one to many counts depending upon the individual in question. Seven, including Tōjō, were sentenced to death by hanging. Their executions were carried out on 23 December 1948 after MacArthur had reviewed and approved the verdict and after the United States Supreme Court had ruled, in considering a defence appeal, that it had no jurisdiction to review the IMTFE judgement. In the case of Hirota Kōki, a career diplomat and former prime minister who was the only civilian executed (primarily for having allegedly failed to prevent Japanese atrocities during the China incident), he was sentenced to death on the basis of a narrow six to five majority vote. The other six went to the gallows after a seven to four majority vote in each instance. Of the remaining defendants, sixteen were sentenced to life imprisonment; Tōgō Shigenori, to twenty years' imprisonment; and Shigemitsu Mamoru, a former foreign minister, to seven years' imprisonment, although he would be released by MacArthur in 1950.

Significantly, although eight justices supported the final judgement, three— Pal, Henri Bernard of France, and B. V. A. Röling of the Netherlands—recorded dissenting opinions. Pal's was the most comprehensive in finding all the defendants innocent on all counts. He denied that a conspiracy had been established and that aggressive war was a crime in international law, to cite only two of his objections. In addition, the majority opinion was divided on specific points. For instance, Webb opposed the death sentence, unsuccessfully, arguing that none of the defendants should be executed since the emperor, under whose formal authority they had acted, had been exempted from trial.

Soon after the trial, all those who had been arraigned but not indicted were released. Six of the convicted defendants subsequently died in prison. On 7 April 1958, the others were set free by the Japanese government after its appeals for clemency to the signatories of the 1951San Francisco peace treaty had been approved, as Article 11 of the treaty had stipulated. Because Article 11 also stated Japan's acceptance of the IMTFE judgement, and the results of other Allied war crimes trials in the Far East, the Japanese government subsequently felt under no obligation to pursue the matter of Japanese war crimes. As a consequence, in post-independence Japan, in contrast to Germany, there have been no further prosecutions relating to the Second World War. This, and the fact that the Tokyo trial enabled the Japanese people as a whole to let their leaders take responsibility for the catastrophe of war, possibly explains why they, unlike the German people, have not fully confronted the question of whether they themselves shared in that responsibility, at least in the moral sense of complying with their government's war policies.

The Tokyo war crimes trial remains the subject of great debate even today. Above all, the version of history based on the seriously flawed conspiracy interpretation, which so conveniently suited the victorious Allies, has been justifiably criticized both in Japan and elsewhere. But in over-reacting to the ‘Tokyo trial’ interpretation, some revisionists, including Japanese, have recently posed equally simplistic counter-interpretations which go too far in the opposite direction of justifying Japanese expansionism. Interpretative swings of this sort still impede a balanced understanding of the origins and causes of war in the Asian-Pacific theatre.

2. The class B and C regional trials

The published proceedings, exhibits, and other documents of the Tokyo trial are invaluable for research on such varied topics as the political history of pre-war and wartime Japan, the fragmented, collective nature of Japanese decision-making, Japanese wartime operations and policies in occupied territories, and Japanese complicity in the widespread sale of opium and other narcotics as a source of wealth and means of social control in wartime Asia. Similarly, the records of the more than 2,000 Allied regional war crimes trials comprise a rich source of information on the conduct of the war by Japanese units in the field, and specifically, their treatment of prisoners-of-war (POW).

The USA, the UK, China, the USSR, Australia, New Zealand, Canada, France, the Netherlands, and the Philippines all held military courts, some of which continued to operate until 1951, to try Japanese indicted for the murder or brutal ill-treatment of POW and civilians, for theft of property and the like, and for ‘crimes against humanity’ as broadly defined by the Tokyo Charter. Class B defendants (including certain Korean and Taiwanese, as well as Japanese, prison guards, for example) were accused of having committed such crimes themselves; class C defendants, mostly senior officers, were accused of planning, ordering, or failing to prevent them.

In some cases, only one defendant stood trial. In others, defendants were tried in groups. To cite an albeit rather extreme example, in one of the Australian trials held in the South Pacific, there were 93 defendants. Overall, of the 5,700 class B and C defendants, roughly 3,000 (the statistics are somewhat inexact) were convicted and sentenced to imprisonment for varying terms; 920 were convicted, sentenced to death, and executed. The high rate of convictions reflects the dark reality that, as has been estimated, while 4% of Anglo-American POW died in German camps, as many as 27% died in Japanese camps, not counting the many other European and Asian nationals who also perished there.

In general, the regional trials were less controversial than the Tokyo trial and sentences were commonly reviewed, often with death commuted to life imprisonment. Nevertheless, there were important exceptions. The trial of General Yamashita by an American military commission in Manila, beginning in late October 1945, was especially controversial.

The principal accusation against Yamashita was that he had failed in his duty as commander of Japanese forces in the Philippines to prevent them from committing brutal atrocities. The defence acknowledged that atrocities had been committed but contended that the breakdown of communications and the Japanese chain of command in the chaotic battle of the second Philippines campaign was such that Yamashita could not have controlled his troops even had he known of their actions, which was not certain in any case. Furthermore, many of the atrocities had been committed by Japanese naval forces outside his command. However, the court found him guilty as charged and sentenced him to death. The sentence was appealed to MacArthur, who upheld it. It was then appealed to the Philippines Supreme Court and the United States Supreme Court, both of which declined to review the verdict. Thus, Yamashita was executed on 23 February 1946.

Among the many valid criticisms of this trial are the following. The commission of five officers lacked combat experience and formal legal training. With many Filipinos perhaps understandably anxious to make Yamashita pay for their sufferings during the Japanese occupation, the intensely emotional atmosphere of the trial rendered it extremely difficult for the court to judge the case objectively. The court admitted hearsay and other forms of evidence which the defence could not reasonably challenge and defence counsel complained they were given insufficient time in which to prepare their case. Because the well-known Yamashita was the first Japanese to be tried by the Allies for war crimes, MacArthur wanted a swift trial and a guilty verdict to establish a precedent for the approaching trials in Tokyo and elsewhere in the Far East.

Much the same controversy attended the trial in Manila, commencing in late December 1945, of Lt-General Homma, who, in addition to other charges, was held responsible for the notorious Bataan death march of 1942 after the surrender of US troops in the Bataan peninsula. Homma claimed he had been aware of the march but not of the high casualty rate, for which he blamed Japanese officers under his command. He was executed on 3 April 1946 after the United States Supreme Court upheld his conviction and death sentence.

Mention should also be made of the Soviet trial at Khabarovsk in Siberia, which began in December 1949. In this case, twelve Japanese defendants who had served in the Japanese Army Unit 731 were accused of carrying out germ warfare experiments on live POW in Manchuria (see biological warfare). All were found guilty and sentenced to imprisonment. The controversy which arises from the Khabarovsk trial is that the USA, although in a position later to bring to trial other Japanese involved in the infamous activities of Unit 731, chose not to do so. The records of the experiments were kept secret, presumably for use in classified American research. In this context and others, the history of the post-war trials clearly merges with the early history of the Cold War.

Stephen Large

Bibliography

Hosoya, C., Andō, N., Ōnuma, Y., and Minear, R. H. (eds.), The Tokyo War Crimes Trial: An International Symposium (New York and Tokyo, 1986).
Minear, R. H. , Victors' Justice: The Tokyo War Crimes Trial (Princeton, 1971).
Piccigallo, P. R. , The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951 (Austin, Texas, 1979).
Pritchard, R. J., and Zaide, S. M. (eds.), The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East, 22 vols. (New York, 1981).