Tokyo Trial

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Tokyo Trial

The International Military Tribunal for the Far East (IMTFE), commonly known as the Tokyo War Crimes Trial, or simply the Tokyo Trial, lasted three times longer than the Trial of the Major German War Criminals, commonly called the Nuremberg Trial. At one point the president of the IMTFE was informed that the trial was utilizing about one-quarter of all the paper consumed by the Allied occupation forces in Japan. The transcripts of the proceedings in open session and in chambers, taken together with the separate opinions, consist of approximately 57,000 pages and, with the even longer full text of the Trial Exhibits and other documentation assembled for use during the trial, the English-language text represents by far the largest collection of material that exists in any European language on Japan and on Japanese relations with the outside world during the critical period between 1927 and 1945.

The IMTFE Charter

The charter of the IMTFE was issued as an order together with a Special Proclamation by General Douglas MacArthur on January 19, 1946, in accordance with orders sent to him in October 1945 by the Joint Chiefs of Staff of the United States, afterward circulated to the Far Eastern Advisory Commission consisting of representatives of the Allied powers.

MacArthur's Special Proclamation said that he established an international military tribunal for the Far East, approved its constitution, jurisdiction, and functions as set out in its charter, and indicated that these steps were without prejudice to any other proceedings that might be established in Japan or within the domains of the countries with which Japan had been at war. He stated that he did this by powers the Allies entrusted to him as supreme commander with responsibility "to carry into effect the general surrender of the Japanese armed forces," and with the authority bestowed upon him by the governments of the United States, Great Britain, and the Soviet Union at the Moscow Conference of December 1945 and with China's concurrence.

The Charter was strongly influenced by its Nuremberg counterpart but redrafted in compliance with the guidelines given to General MacArthur by the American Joint Chiefs of Staff to suit the different conditions that prevailed in occupied Japan. The Charter established that the supreme commander would select members of the tribunal from names submitted to him by any of the signatories of the Instrument of Surrender. The supreme commander would appoint one of the members to serve as president of the tribunal. The supreme commander would also appoint a general secretary of the tribunal and provide for clerical services and other duties required by the tribunal.

The charter set out the jurisdiction of the tribunal and established the individual responsibility of the accused for acts of state and for acts taken in compliance with superior orders. The supreme commander would designate the chief of counsel. Any of the United Nations engaged in the recent war against Japan might appoint an associate counsel to assist the chief of counsel. Proceedings of the tribunal would be conducted in English and in Japanese. The use of other languages in court later became a contentious matter. It was clear to the Allied powers that the supreme commander and the United States government were determined to go ahead with the tribunal on American terms. Accordingly the Allied powers moved quickly to select their own associate counsel.

The Americans assembled a huge team of more than one thousand lawyers and support staff. In Tokyo as at Nuremberg, the manpower and financial resources committed by the Americans made a huge impact on the collection and processing of documentary evidence collected from German and Japanese archives, offices, and private individuals. At Nuremberg that impact was felt immediately and was continuous throughout the proceedings. At Tokyo, the Americans faced far greater difficulties in extracting documentary evidence from the Japanese government, which continued to function and frequently obstructed them, and so the Americans were less successful in controlling the flow of information to the other national delegations and to the tribunal.

The Indictment

The indictment, mainly the work of the British associate prosecutor, Arthur S. Comyns-Carr, was lodged with the Court during a brief preliminary hearing on April 29, 1946. Two weeks before, the indictment had been recast following the arrival of the Soviet prosecution team in Tokyo. Other delegations took even longer to arrive (several of the judges did not arrive until the trial had already begun).

Each contingent had its own agenda and priorities. Last-minute changes meant that the basic law of the tribunal and its remit were transformed only days before the accused were arraigned. In addition, many of the accused had been subjected to lengthy pre-trial Allied interrogations by teams deployed by the United States Strategic Bombing Survey, by military, naval and air, intelligence, by Civil Affairs analysts, by prosecutors, and by Japanese government investigators (who, with initial encouragement from the Americans, began and soon ended a series of their own war crimes trials in the months before the IMTFE took shape). These interviews were conducted without the protection of any legal counsel.

The Proceedings Begin

For all these reasons, the proceedings began inauspiciously for both sides but were particularly detrimental to the accused who were dependent upon a defense panel that was seriously weak in the provisions made for qualified legal advisers, translators, clerical staff, and financial resources. The defense was also handicapped by express provisions in the charter that obliged the accused to make written applications in advance before seeking to produce any witness or document in evidence. The prosecution section at Tokyo labored under no such impediments regarding prior disclosure.

The court consisted of eleven members, each representing one of the eleven nations involved in the prosecution. The countries taking part in the prosecution and judgment were: five member states of the British Commonwealth and Empire (Australia, Canada, New Zealand, Great Britain, and India), who, together with the United States and its former Commonwealth of the Philippines, constituted a built-in majority for the Anglo-American common law legal system; China; the Soviet Union; and two Continental European imperial powers, France and the Netherlands. Evidence relating to Korea, Manchuria, the People's Republic of Mongolia, Thailand, Cambodia, Burma, and Portuguese possessions in East Asia was also received by the tribunal, but for legal as well as for political ones those countries or territories were not formally joined in the proceedings.

The legitimacy of the Tokyo Trial depended upon the number and variety of the states that took part in the trial, but more crucially upon the express consent of the Japanese state to submit to its jurisdiction, relinquishing or at least sharing some sovereignty in the process. This is a more modern conception of legality than was applied at Nuremberg. The difference arose because Japan did not, strictly speaking, surrender unconditionally. The Special Proclamation that brought the IMTFE into existence claimed that by the 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," but in fact those provisions were restricted to measures intended to implement "the unconditional surrender . . . of the Japanese Imperial General Headquarters and of all Japanese Armed forces and all armed forces under Japanese control wherever situated." Thus, Japan surrendered in words that protected the Japanese emperor. On a number of occasions the thrust of questions put to witnesses came perilously close to implicating Emperor Hirohito personally, but the trial also provided powerful support for the viewpoint that he was a benign constitutional monarch who wanted a durable peace and prosperity for his people.

It was a matter of pivotal importance during the trial that the Japanese "sovereignty" was not extinguished with the end of hostilities. The defense made much of the limited nature of the Japanese surrender in framing successive challenges to the powers of the supreme commander, to his promulgation of the tribunal, to the charter, to the nomination of its members and of its president, and to the jurisdiction of the tribunal. These arguments created consternation in court.

The Tokyo Trial indictment did mimic elements that were present in the Nuremberg indictment, but on an altogether grander scale. The same ideas of conspiracy, crimes against peace (the planning, preparation, initiating and waging of wars of aggression), individual criminal responsibility for conventional war crimes, and crimes against humanity appeared in the indictments at Tokyo and at Nuremberg. Thus the conceptual framework was quite similar. But the ways these crimes were dealt with inevitably differed, and there were fifty-five counts on the indictment at Tokyo compared to four at Nuremberg.

The Tokyo Trial looked at events as far back as 1927, because the prosecution argued that a document prepared that year and known as the Tanaka Memorial showed that a "Common Plan or Conspiracy" to commit "Crimes against Peace" bound the accused together. The conspiracy thus began in 1927 and continued through to the end of the Asia and Pacific War in 1945. The Tanaka Memorial was, in fact, a skillful Chinese forgery, but it was not regarded as such by most observers at the time and it was consistent with the private thinking of key individuals within the Japanese government of its time.

The breadth of the supposed conspiracy took in virtually every facet of Japan's domestic and foreign affairs over a period of nearly two decades, half again longer than the period covered by the Nuremberg Major War Crimes Trial. At the time of the Tokyo Trial, the concept of criminal conspiracy was frequently employed in the battle against organized crime in the United States. It was held in far less esteem as a weapon in the arsenal of public prosecutors elsewhere. The U.S. Department of Justice gave this matter a great deal of thought and produced a treatise on the subject for the benefit of Allied prosecutors in Tokyo. Later, copies of this brief were handed out to individual members of the tribunal.

The prosecution's conspiracy case was summed up later by an American assistant prosecutor at the trial, "The Prosecution Case is a sturdy structure built upon a deep and firm and solid foundation of fact. To its destruction the Defense have brought as tools a microscope and a toothpick." What generally was at issue were not the facts, but the different constructions which the two sides placed on those facts, and this, by its very nature, meant that a great deal of detailed evidence was required to buttress the positions taken by the two opposing sides.

The defense in Tokyo retraced much of the ground covered by the prosecution and went on to explore virtually the whole history of Japan's twentieth-century constitutional, social, political, and international history up to the end of World War II. Evidence directly linking the individual defendants to what is a far broader historical record of domestic and world history became hard to see and, for most of the trial, comparatively little attention was paid to any indisputably criminal activity on the part of the accused. Defense counsel tried in vain to force the prosecution to define the essential elements and to present a Bill of Particulars indicating details of the specific crimes that their individual clients were supposed to have committed. To some extent the emphasis on criminal masked the fact that the charges on the indictment at Tokyo were framed before the prosecution determined who was to be tried. As a result the prosecution experienced real difficulties in finding a sufficiency of evidence to make a truly convincing case against most of the accused.

The twenty-eight defendants charged at the Tokyo Trial were selected following international deliberations and the final decisions were taken by an executive committee of the International Prosecution Section, chaired by Sir Arthur Comyns Carr, K.C. Pretrial briefs were prepared following investigations and interviews with individual suspects, most of whom had been arrested and held in Sugamo Prison because their names appeared on the UN War Crimes Commission's lists of major war crimes suspects. Others were still free when questioned.

The defendants were by and large "establishment" figures who had achieved prominence in the leadership of Japan and had won the confidence and approbation of their fellow citizens through their own administrative competence, intellectual excellence, or distinguished military service. Baron Hiranuma Kiichirô, for instance, had become a judge as far back as 1890, rose by virtue of his talent to become vice-minister of justice in 1911, chief justice of the Supreme Court of Japan in 1921, minister of justice in 1923, vice-president of the Privy Council for a period of twelve years and afterward its president in a career interspersed posts as minister for home affairs and prime minister of Japan. The Tribunal ignored Hiranuma's prewar reputation as a strong admirer of the Western democracies and as a man who held the European totalitarian states in low regard.

Others among the defendants, in their own ways were equally distinguished, and the voices which are heard in their affidavits, testimony, and the documentary records introduced on their behalf show them generally to have been thoughtful, well-meaning, and deeply conscious of their duty to uphold the honor and integrity of Japan. The Japanese public, Western opinion, and a majority of the court, however, were of a different mind.

The Court began hearing the prosecution's case on May 4, 1946. The prosecution presented its evidence in fifteen phases, and the presentation of its Evidence-in-Chief closed on January 24, 1947.

The Tokyo Trial, like the Nuremberg Trial, refused to admit evidence favorable to the defense that might appear to bring the wartime conduct of the Allied powers into disrepute: The Court simply ruled that its jurisdiction was strictly confined to an examination of the conduct of the Japanese side. The court's powers were limited strictly by the terms of the charter and rules of procedure of the Tokyo Trial. There was, arguably, no legal basis on which the tribunal could have gone beyond the intentions of those who had convened the trial and given it authority. This was fully acknowledged in its judgment.

The Defense Panel

As early as February 21, 1946, the Judge Advocate General's (JAG) Department in Washington, D.C., was asked to obtain fifteen or twenty suitable American attorneys to form a defense panel "from which might be drawn by selection or by Court appointment counsel for Defendants charged." On March 19, 1946, General MacArthur informed Justice Northcroft of these developments and indicated that he had that day asked the JAG to increase the number of American defense lawyers from fifteen to twenty-five and to take care that they had the proper experience and qualifications that would allow the Japanese defendants a fair trial and adequate defense.

For each defendant a Japanese defense counsel was found to take charge of his particular case and an American co-counsel assumed what was nominally a junior role. The working relationships between individual American attorneys and their Japanese counterparts were not always easy. At first, not all of the defendants welcomed the Americans who were offered to them, but eventually all came to the conclusion that it was advisable to engage one or other of them. The defense counsel of both nationalities varied enormously in talent, energy, age, and experience.

The Japanese defense counsel labored under immense handicaps. As George Ware revealed years later, when the defense case opened, the chief of defense counsel, Uzawa Sômei, broadcast a nationwide radio appeal for "funds, communications, lodgings and food" (Ware, 1979, p. 145). The outcome was exceedingly disappointing. The attorneys hired by the accused finally had to resort to the expedient of donating $1,000 per head and each of the defendants paid $10,000 into a central pool to provide for translators, clerical staff, and witness expenses. Some of those difficulties were surmounted with the arrival of American associate counsel provided to bolster the defense.

Defense motions to dismiss the charges against the accused were denied, following which the defense presentation of its case began on February 3, 1947, and continued until January 12, 1948. The defense did not attempt to match the structure imposed by the prosecution's case and instead offered its case in six divisions.

In due course, the prosecution and then the defense presented further evidence in rebuttal until February 10, 1948, at which time the defense filed further motions to dismiss, which were rejected. The summations and other closing arguments continued from February 11 to April 16, 1948, when the proceedings were adjourned while the court considered its findings.

By the close of evidence, the court had met in 818 public sessions and heard from 416 witnesses in court, in addition to reading unsubstantiated affidavits and depositions from some 779 others whose evidence the court accepted for whatever probative value they might have had. The deeds recounted in the latter papers had so weakened many of these potential witnesses that it lay beyond their physical or mental capacity to travel to the Japanese capital in order to submit to a cross-examination. In other instances, individual Allied governments put obstacles in the way of potential witnesses for the defense who were prepared to testify on behalf of one or more of the accused or in the general divisions of the defense case. In a number of cases these potential witnesses had been diplomats, senior civil servants, or government ministers before or during the war. The Allied powers also refused to permit the defense counsel any access to its own official documents (other than published records). All of this was prejudicial to the fairness of the proceedings.

Judgment and Sentencing

The 1,781-page judgment of the tribunal took months to prepare. The court president, Sir William Webb of Australia, required nine days to read it in court (November 4–12, 1948). Before the judgment, Admiral Nagano Osami and the former diplomat-cum-railway administrator Matsuoka Yôsuke died of natural causes (a heart attack and pneumonia) brought about or exacerbated by the strain of their circumstances and the poor conditions in which they were kept at Sugamo Prison. Another of the accused, Ôkawa Shûmei, had been found unfit to stand trial after a theatrical episode lasting only a few minutes before he so much as entered a plea of "not guilty," and after protracted inquiries his case had been adjourned sine die. All twenty-five of the surviving defendants at the Tokyo Major War Crimes Trial were convicted, and all but two of them were found guilty on at least two charges.

Seven were condemned to death by hanging. Six of the condemned men had been leading military and naval figures. The seventh was a former prime minister, foreign minister, and professional diplomat, Hirota Kôki. All but two of the remaining defendants were sentenced to life imprisonment. The two exceptions, both professional diplomats who served successive terms as foreign ministers in Tôjô Hideki's wartime cabinet, were sentenced to twenty years (Tôgô Shigenori) and seven years Shigemitsu Mamoru).

The Tribunal did not convict any organizations, but General MacArthur's occupying forces were carrying out sweeping political purges of individuals and groups within Japan, blacklisting some 210,288 people, mostly on account of their previous membership in banned organizations.

The judgment and sentences of the tribunal were confirmed by General MacArthur on November 24, 1948, two days after a perfunctory meeting at his office with members of the Allied Control Commission for Japan, who acted as the local representatives of the nations of the Far Eastern Commission set up by their governments. Six of those representatives made no recommendations for clemency. Australia, Canada, India, and the Netherlands were willing to see the general make some reductions in sentences. He chose not to do so. The issue of clemency was thereafter to disturb Japanese relations with the Allied powers until the late 1950s when a majority of the Allied powers agreed to release the last of the convicted major war criminals from captivity.

In neither the Tokyo nor the Nuremberg Trials was it deemed sufficient for the defense to show that the acts of responsible officers or of government ministers and officials were protected as "acts of state." The twin principles of individual criminal responsibility and of universal jurisdiction in the prosecution and punishment of war criminals were firmly established.

Both courts ruled decisively that international law is superior to national law, and added that nothing that national courts or administrations might say could overturn that basic principle, which in times to come should be regarded as binding upon the victor as well as the vanquished. These judgments, by themselves, were not binding upon the domestic practices of states; yet, as all of the great powers and most of the lesser ones of the world at the time did sign the San Francisco Peace Treaty (which provided for all parties to accept the judgment of the Tokyo Tribunal in its entirety), there is a valid line of argument that it does indeed impose obligations upon each of those states (subject to any differences that may exist within their respective constitutions).

To its credit the IMTFE exercised a cathartic function of surpassing importance for the people of Japan and for their former enemies and, to the extent that its judgment was accepted and formally endorsed under the terms of the San Francisco Peace Treaty, it relegitimated, as intended, the Allied occupation of Japan itself.

On March 7, 1950, the supreme commander issued a directive that reduced the sentences by one-third for good behavior and authorized the parole of those who had received life sentences after fifteen years. Several of those who were imprisoned were released earlier on parole due to ill-health.

Hashimoto Kingorô, Hata Shunroku, Minami Jirô, and Oka Takazumi were all released on parole in 1954. Araki Sadao, Hiranuma Kiichirô, Hoshino Naoki, Kaya Okinori, Kido Kôichi, Ôshima Hiroshi, Shimada Shigetarô, and Suzuki Teiichi were released on parole in 1955. Satô Kenryô, whom many, including Judge B. V. A. Röling regarded as one of the convicted war criminals least deserving of imprisonment, was not granted parole until March 1956, the last of the Class A Japanese war criminals to be released. On April 7, 1957, the Japanese government announced that, with the concurrence of a majority of the powers represented on the tribunal, the last ten parolee major Japanese war criminals were granted clemency and were to be regarded henceforth as unconditionally free from the terms of their parole.

The Aftermath

The initial intention of the Allied powers was to hold further international military tribunals in both Germany and Japan once the first major war crimes trials concluded. The defendants selected for the first trials were not regarded as the only major war criminals but as clearly representative members of the groups held responsible for the outbreak of World War II. A large number of persons were held in custody with the intention of bringing them to justice as Class A war criminals. The British and Americans, however, soon lost their appetite for such proceedings (and their expense), and by December 1946 it was clear that no further major international war crimes trials would take place. In the end, however, it was not until Christmas Eve, 1948, that a formal announcement was issued that the last of the nineteen individuals who might have been expected to figure in further proceedings before the IMTFE were to be released rather than face trial.

The decision to release these men was taken as a purely political act and had nothing much to do with the merits of their individual cases. However, it is worth noting that most of these potential accused gave evidence during the Tokyo Major War Crimes Trial and, even when they did not, the nature of their involvement in events described in that trial is evident in the transcripts and other documentation of its proceedings.

An imperial rescript granting an amnesty by general pardon for war crimes committed by members of the Japanese Armed Forces during World War II was issued on November 3, 1946. It had no effect upon the Allied trials, and the news of it attracted little if any interest abroad at the time. However, one can say with a degree of certainty that no Japanese war criminal will ever again be tried on indictment in a Japanese court for crimes related to the period before and during World War II. Foreign governments have long since ceased to reveal any interest in continuing to pursue Japanese war criminals through national courts, and without regard to the dwindling number of people still interested in the apprehension and prosecution of such perpetrators through international institutions, the new permanent International Criminal Court has been denied any jurisdiction at all over crimes committed prior to its own creation.

In discussing the Tokyo trial, matters that have not been explored sufficiently include the political context of the Tokyo Trial proceedings, its charter and limited jurisdiction, the evidence presented in court, the disturbance in the power balance between the two opposing sides, the tables of legal authorities on which the respective sides relied, the one-sided exclusion of evidence to the detriment of the defense, the forensic skills or inadequacies of counsel or members of the tribunal, the differing structures of the prosecution and defense cases, the soundness or otherwise of rulings made by the tribunal during the course of the Tokyo Trial, and the closing arguments found in the summations, rebuttal and sur-rebuttal stages of the proceedings. The judgments of the international tribunals at Nuremberg and Tokyo, arguably the least satisfactory parts of all of the postwar proceedings, are read more frequently but seldom examined by scholars within the historical context of their trial processes.

SEE ALSO Japan; Nuremberg Trials; War Crimes

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R. John Pritchard