DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL
It may be noticed here that, according to the Prosecution evidence, the departments immediately responsible for the prisoners of war were:
(l) The War Ministry, (2) The Ministry of Foreign Affairs and (3) The Imperial General Headquarters.
In the War Ministry the principal responsible officers were:
(i) The War Minister,
(ii) the Vice-Minister of War,
(iii) the Chief of the Military Affairs Bureau,
(iv) the Chief of the Military Affairs Section, and
(v) the Chief of the War Information Bureau.
In the Ministry of Foreign Affairs the responsible officers were:
(i) The Foreign Minister and (ii) the Vice-Minister.
In the Imperial General Headquarters the responsibility lay on (i) The War Minister,
(ii) the Chief of the Army General Staff,
(iii) the Navy Minister, and
(iv) the Chief of the Navy General Staff.
Accused KIMURA, KOISO, MUTO, OKA, SATO, SHIGEMITSU, SHIMADA, TOGO and TOJO would be the persons having responsibility under this category.
KIMURA was Vice-Minister of War from 10 April 1941 to February 1944.
MUTO was Chief of the Military Affairs Bureau from October 1939 to April 1942.
OKA was Chief of the Navy General Staff from 15 October 1940 to 18 July 1944.
SATO was Chief of the Military Affairs Section from February 1941 to April 1942 and Chief of the Military Affairs Bureau from April 1942 to December 1944.
SHIGEMITSU was Minister of Foreign Affairs from April 1943 to 6 April 1945.
SHIMADA was Navy Minister from October 1941 to July 1944 and was Chief of the Navy General Staff from July 1944 to August 1944.
TOGO was Foreign Minister from October 1941 to March 1942.
TOJO occupied the position of the Minister of War fromjuly 1940 toju- ly 1944.
KOISO became Prime Minister on 22 July 1944 and his cabinet functioned till 6 April 1945.
Accused DOHIHARA, HASHIMOTO, HATA, ITAGAKI, KIMURA, MATSUI, MUTO, SATO and UMEZU come under the second category.
Those of the accused who come under the third category only: Accused ARAKI, HIRANUMA, HIROTA, HOSHINO, KAYA, KIDO, MINAMI, OSHIMA, SHIRATORI, SUZUKI thus come under this category.
As to the responsibilities involved in the office held by the accused of the first category named above, the prosecution evidence is to be found in the deposition of its witness, TANAKA Ryukichi.
The witness was Chief of the Military Service Bureau in the War Ministry and was familiar with the organization and responsibilities of the various bureaus of the War Ministry as they existed between 1940 and 1945. The testimony of the witness may be summarized as follows:
1. The most important bureau in the War Office is the Military Affairs Bureau. The reason for so stating is that the Military Affairs Bureau is in charge of the Army’s budget, the organization, equipment and installation of the military forces, the making of domestic and external plans, the conducting of propaganda, the conducting of investigation, all of which constitute important functions (R. P. 14,285-86).
2. Matters concerning international regulations affecting the army were handled in the Military Affairs Section of the Military Affairs Bureau (R.P. 14, 286)
3. The responsibility regarding the location and construction of prisoners of war camps is with the Minister of War; but as to the location and construction of such camps, the business was handled by the Military Section of the Military Affairs Bureau (R. P. 14, 286)
(a) In the matter of protests regarding the treatment of prisoners of war, documents and other papers were sent by the Ministry of Foreign Affairs to the War Office, the Home Office and the Navy Ministry.
(b) Such diplomatic documents were first sent to the Adjutant’s Office in the War Ministry and from there to the Military Affairs Section. Those relating to prisoners of war were sent by the same section to the Prisoners of War Information Bureau (R.P. 14,287)
(c) Replies to be made to the authorities outside of the War Office were prepared in the Military Affairs Section of the Military Affairs Bureau (R.P. 14, 287)
(d) The proposed replies would next go to the Foreign Office by way of Adjutant’s Office—War Office. These went to the Foreign Office after being given the approval of the Minister and the Vice-Minister.
(a) Conferences of the Bureau Chiefs of the War Ministry were held twice a week.
(i) Immediately after the fighting at Bataan by the end of April 1942 a meeting was held at which the question of treatment of prisoners of war arose.
(ii) At this conference the question as to HOW TO TREAT THE MANY PRISONERS OF WAR captured in the various combat zones in the southern areas was determined.
(iii) Those present at this conference were TOJO, War Minister ; KIMURA, Vice-Minister; TOMINAGA, Chief of the Personnel Bureau; SATO, Chief of the Military Affairs Bureau; witness himself and KAN, Chief of the Ordnance Bureau; and YOSHIZUMI, Chief of the Procurement and Mobilization Bureau; KURI- HASHI, Chief of the Security Bureau; MIKI, Chief of the Surgeon General’s Bureau; OYAMA, Chief of the Legal Affairs Bureau; NAKAMURA, Commander of the Gendarmerie; HONDA Chief of the Armoured Forces Bureau;
MATSUMURA, Chief of the Army Press Section; other than these, the private secretaries of the War Minister and the Vice War Minister. That is all.
(iv) At this conference at the request of KIMURA, Chief of the Prisoner of War Information Bureau, TOJO, War Minister, gave his decision,
(v) In the light of the prevailing situation in Japan at that time, which was to enhance the labour efficiency of the country, and in the light of the slogan then current, “No work, no food”, THE FIRST POINT THAT WAS DECIDED at this meeting was to make all prisoners of war engage in forced labour.
With regard to this decision, UYEMUIA, Chief of the Military Affairs—Prisoner of War Information Bureau, said that engaging prisoners of war of the rank of warrant officers and above in forced labour would be in violation of the Geneva Convention. But in spite of the view thus expressed by UYEMUIA, War Minister TOJO gave the decision of utilizing these officers for labour purposes in the light of the fact that Japan had not ratified the Geneva Convention, although it was the government’s position to respect the spirit of that Convention.
It was decided that prisoner of war camps be established not only in the southern areas but also in Japan proper, in Formosa, Korea, China, and Manchuria, and to send prisoners of war to these areas as a means of enhancing the trust and confidence of the peoples of Asia in Japan (R. P. 14,290-01)
6. THE IMPERIAL GENERAL HEADQUARTERS was established by an ordinance (Exh. 80). It was divided into two parts, the Army and the Navy. The Army, by the Army General Staff and the Navy Department constituted by Naval General Staff. In addition to this, the War Minister and the Navy Minister participated in the Imperial Headquarters as regular members. Then the Vice-Minister of War, the Chief of the Military Affairs Bureau, and other bureau chiefs, when necessary, attended as members of the staff of the War Minister. The most important positions in the Imperial General Headquarters were occupied by the Chief of the Army General Staff and the Chief of the Navy General Staff. Other important members, in their order, were the Vice-Chief of the Staff, the War Minister and the Chief of the First Division General Staff. By Chief of the First Division the witness meant the Operations Chief (R.P. 14,923)
(a) In Japan the handling of prisoners is quite different from other countries, and the Prisoner of War Information Bureau and administration of prisoner of war matters were under the supervision of the War Minister himself. And, therefore, the actual handling of matters relating to the prisoners of war was the responsibility of the War Minister himself; the Foreign Office was merely a post office which handled the communications (R.P. 14,365-66)
(b) In the witness’ recollection, the business of control of the prisoners of war included such functions as where to locate POW camps, how to handle prisoners of war, how to promote the health of prisoners of war, what to do with sick prisoners, and other general treatment of prisoners of war; how to distribute Red Cross messages and parcels, and the question relating to the exchange of POW letters as through the offices of a neutral country.
(c) The matter of policy regarding prisoners of war is carried out in Japan by the War Ministry, specifically by the Military Affairs Bureau. Outside of Japan it is handled by the Chief of the General Staff after consultation with the Minister of War. In the Army General Staff, it was handled by the Second Division.
(d) As to the requisitioning of food for prisoners of war, the matter was handled by the various commanders who supervised the various POW camps. In other words, it was carried out by various commanders in the field in accordance with the orders and instructions of the War Minister.
(i) As to the needs of the commanders in the field depending upon the prisoners taken, the matters were carried out by the commandants of the various prisoner of war camps in the field who communicated directly with the Chief of the Prisoner of War Information Bureau where the matters pertaining to POWs were disposed of (R.P. 14,369)
(ii) As the matters pertaining to prisoners of war were not connected in any way with operations, but being a policy matter, these matters could be handled directly with the War Ministry through the Prisoners of War Information Bureau and this would not be in violation of any regulations (R.P. 14, 369)
(iii) This direct reporting from the field to the Ministry of War was carried on for the sake of convenience and expedience with respect to matters which had to be settled quickly. According to the rule, communications from the field to the central authorities were to be channeled through the General Staff; any direct communication would.be an infringement of those regulations if the rule were to be applied strictly; but prisoner of war questions, being a purely policy matter, there was a tacit understanding that direct communication could be made and there was no protest with respect thereto from the Army General Staff.
connection we have also the following evidence:
Exhibit 68; Japanese Constitution.
Exhibit 73: Imperial Ordinance relating to general rules concerning the organization of the Ministries,
Exhibit 74: Organization of the War Ministry.
Exhibit 75; Organization of the Navy Ministry.
Exhibit 3, 350; The regulations of the Kempei.
Exhibit 78: Regulations of the Army General Staff.
Exhibit 79 : Regulations of the Navy General Staff.
Exhibit 2,983 : Imperial Ordinance concerning the organization of the Fleet.
Exhibit 3, 462 : Regulations governing the duties of the officers of the War-time Superior Headquarters.
Exhibit 1,965 : Regulations for the treatment of POW, 31 March 1942- Imperial Ordinance 23 December 1941 on POW Camp.
Testimony of TOJO.
Testimony of SHIMADA.
I need not examine this evidence in detail. For my present purpose the evidence of TANAKA Ryukichi gives a fairly accurate account of the working of the state machinery.
I may now take up the different items of crimes against the Prisoners of War. The several categories of crimes alleged to have been committed are given below:
1. Inhuman treatment of the Prisoners of War in contravention of Article 4 of the Hague Convention of 1907 and Article 2 of the Geneva Convention, 1929.
(a) Treatment of Prisoners of War by the Kempei Tai.
(b) The prisoners were starved and subjected to corporal punishment and their sick were neglected.
2. Insults and expositions to public curiosity in contravention of Article 2 of the Geneva POW Convention, 1929.
(a) The making of oaths or agreements not to escape.
(b) Punishments of Prisoners of War for escaping, in excess of those provided by the Hague Convention 1907 and the Geneva Convention 1929.
4. Transportation of Prisoners of War:
(а) By sea,
(б) Bataan Death March.
(a) Employment of the Prisoners of War upon tasks having connection with the operations of the war.
(b) Compulsory employment of Officer Prisoners in contravention of Article 6 of the Hague Regulations of 1907 and Article 29 of the Geneva Convention 1929.
(c) Employment of the Prisoners of War in Burma-Thailand Railway.
6. Prisoners of War wrongfully convicted of espionage charges.
7. Execution of Allied airmen.
(a) Creation of ex post facto law.
(b) Execution on trial.
(c) Execution without trial.
It cannot be denied that the treatment meted out to the Prisoners at the various theatres of war was inhuman. The actual perpetrators of these atrocities have been dealt with elsewhere, and there is no reason to suppose that in their case anything but stern justice has been adequately meted out. These actual perpetrators are not before us. The case against the accused before us is:
1. that they ordered, authorized and permitted the commission of these atrocities; or
2. that they, being by virtue of their respective offices responsible for securing the observance of the laws of war, deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance and prevent the breaches of such laws and thereby violated the laws of war.
If the first of the above allegations be found established, there is no doubt that the atrocities committed would be their own acts and they would be criminally responsible for those of them that are criminal acts in international law.
So far as the second item is concerned, I have already given my reason why, as the Charter constituting this Tribunal stands, any deliberate and reckless neglect of duty alone would not suffice to fix any criminal responsibility on the present accused. No inaction as such, however deliberate and reckless, has been listed in the Charter as acts to be tried by the Tribunal. The inaction is only to supply an evidentiary fact, the ultimate PROBANDUM being the order, authorization or permission ’ emanating from these accused, so as to make the act in question their own act.
In order to fix the criminal responsibility for the charges under consideration on the accused before us, the prosecution stresses the following points:
1. Prisoners of war are in the Power of Government.
(а) No government or member of it can therefore evade responsibility by trying to shift it on to a particular department.
(б) The responsibility remains with every individual member of the Government.
2. (a) Every one of the accused must have been aware of the atrocities from their very notoriety.
(b) A general similarity in the character of the outrages establishes a universal plan or pattern and indicates that this was a recognized policy of terrorism.
Article 4 of the Hague Convention says that “prisoners of war are in the power of the hostile government, but not of the individuals or corps who capture them. They must be humanely treated.”
Article 2 of the Geneva Convention also says the same thing though expressed in a slightly different language. According to this article, “prisoners of war are in the power of the hostile POWER, but not of the individuals or corps who have captured them. They must at all times be humanely treated and protected, particularly against acts of violence, insults and public curiosity. Measures of reprisal against them are prohibited”.
According to the Prosecution, this “hostile power” or “hostile government” means and refers to every member of the government, and no member of it can evade responsibility by trying to shift it on to a particular department. The main responsibility, according to the Prosecution, remains with every individual member of the government. I am afraid I cannot accept this interpretation of these provisions.
In my opinion, the members of a government are entitled to rely on the proper functioning of every organ of it. A government under its constitution operates by distributing different functions amongst its different members. The responsibility for the proper discharge of any of those functions would lie on the particular member entrusted with its discharge. Other members are entitled to rely on the proper functioning of the particular organ taking up these distributed responsibilities. Even in his own sphere of responsibility, a member is entitled to rely on the proper working of the machinery provided by the constitution for the discharge of his functions.
According to the Prosecution every member of a Government owes a duty to bring such matters before the Cabinet and to resign, if he fails thereby to get satisfaction.
In my opinion, at least for our present purposes, when we are called upon to fix criminal responsibility on the ground of any inaction on the part of a particular member, I would not insist upon the observance of the standard of conduct laid down by the Prosecution. Such a standard may be an ideal one for the golden age of an international community. At present no government in the world functions in that way, and I would not expect any extraordinary standard of conduct of the present accused. We must not also forget that we are now considering the war-time behaviour of a Cabinet member. Any peacetime code of behaviour is likely to be more or less unsuitable to meet the exigencies of the situation as developed in the course of any current war. Every such war would give rise to new social, economic and belligerent conditions. We must not also ignore the part which propaganda is made to play by the Powers of the present-day international society, specially in such wartime.
The three main sources from which the Prosecution alleged that the Japanese Government obtained knowledge of the commission of war crimes by its nationals during the Pacific War are as follows:
1. Protests lodged by Protecting Powers on behalf of belligerents ;
2. Transcriptions of recordings of broadcasts made from America and Great Britain during the Pacific War;
3. Official Japanese documents which constituted evidence of or a direction to commit war crimes.
Most of the protests had reference to prisoners of war held by the army. Copies of these with translations attached were sent to all sections in the War Ministry concerned with the subject matter, and at times, depending on the nature of the protest, copies were also sent to other ministries such as Ministry of Home Affairs, Justice, etc.
At the War Ministry, and protests received were discussed at the conferences between the Minister, Vice-Minister and the bureau chiefs. After this they were forwarded by the Prisoner of War Information Bureau to the army commander of the area in which the grounds of the protest had arisen and also to the chief of the prisoner of war camps in that area. Upon information being received from the last mentioned sources, a reply was prepared in the military affairs section of the Military Affairs Bureau and forwarded to the Foreign Office.
From various documents in evidence, it would appear to have been the practice to give protests and other documents originating with the Protecting Powers a fairly extensive circulation in the War Ministry; in addition, the Foreign Ministry would frequently send duplicates of protests to the Prisoner of War Information Bureau as well as to the War Ministry (R. P. 27,158, Exh. 473; Exh. 3,529, 3, 367-A)
The Prosecution admitted that, considered purely as a matter of machinery, no fault could be suggested with regard to this system. It, however, contended that it was not enough for the Japanese Government to pay “lip service” to its obligations under international law. We were invited to recall that the Japanese Government was already well-informed of the barbarous manner in which the Japanese forces customarily behaved.
The Prosecution contended that the very nature of the protests, coupled with the supporting evidence that accompanied them, and the replies made by field commanders to the Prisoner of War Information Bureau, in so far as such information is concerned, made it perfectly clear to the War Ministry and the Foreign Office that war crimes were being and had been committed and yet no effective steps were taken to stop them. It was, therefore, submitted that they were allowed to continue as a matter of government policy or as matters to which the Japanese Government was indifferent.
The official Japanese documents which, according to the Prosecution, constitute evidence of or a direction to commit war crimes, relate to different matters having nothing to do with the inhuman treatment of prisoners of war under our consideration. Some of these relate to employment of the prisoners of war on prohibited tasks and others relate to what the Prosecution characterizes as insults to the prisoners. I have listed these offenses separately and shall consider this part of the evidence in that connection. The third set relates to censorship instructions issued during war. Such instructions prohibited “any reports which give an impression of cruel treatment, such as prisoners being punished or being made to labour without clothing”. I do not think that such measures necessarily lead to the inference that the authorities had knowledge of such treatments of the prisoners. Certainly the authorities concerned had knowledge in the sense that there were those protests and broadcasts from the enemy sources and this was sufficient for the adoption of the precautionary measures. Such censorship measures were common to enemy belligerent nations. Fear of evil propaganda was not unusual with the belligerent powers.
As regards transcriptions of recordings of broadcasts made from America and Great Britain, I must again refer to the past history of propaganda already noticed by me. After the First World War it was widely known how a sort of vile competition was carried on in exerting imagination as a means of infuriating the enemy, heating the blood of the stay-at-homes on one’s own side and filling the neutrals with loathing and horror. People were made to swallow even some of the most bizarre fairy tales. I believe the accused were entitled not to take these broadcasts and protests at their face value. They were no doubt bound to enquire, and they did so enquire. They were certainly entitled to rely on the reports coming from their own responsible officers. I do not think it would be merely paying ‘lip service’ to its obligation if any government accepts such reports from its responsible officers, specially during war-time. Every government did so.
I do not think it is expected of a war minister or of a foreign minister of any government that he should personally go to the alleged place of occurrence and verify whether the protests were well-founded or not. We must not forget the vastness of the theatres of war. A war minister or a foreign minister did not stand in relation to these prisoner camps in different parts of the Pacific theatre of war in the same position as does even the head of a police department in relation to the different police stations in a city.
I do not see anything of special reliability in the nature of the protests or in the so-called supporting evidence that accompanied them. The protests came through neutral powers; but these neutral powers were only transmitting what they got from the protesting belligerents.
No evidence of any customary behaviour of the Japanese forces is before us. I have already examined how the stories of atrocities in China stood at the time and stand now.
The Prosecution laid much stress on the similarity of patterns of crimes committed in this respect in every camp. I have already examined this alleged similarity of pattern in another connection. In my opinion, no such similarity of pattern has been established as would entitle us to hold that all these inhuman treatments were the result of the government policy or directive.
We have in evidence before us that the express directions and instructions emanating from the War Ministry were against such treatment. However inadequate in comparison with the stories of atrocities, there are in evidence cases of punishments of the guards and officers concerned for maltreatment of
the prisoners. There are admittedly cases of camps where the treatment was unobjectionable. There are neutral inspection reports of at least some of the camps which support the cases of good treatment of the prisoners there at least during a considerable period of the war. Every one of these matters would sufficiently counter the hypothesis of any central policy, directive, or permission countenancing the atrocities now disclosed in evidence.
I have already indicated what sort of inaction is required to be established in this case and for what purpose. In my opinion, no such inaction in this respect on the part of the accused has been established in this case as would entitle us to infer that these acts of inhuman treatment meted out to the prisoners of war were ordered, authorized or permitted by any of the accused. The war here might have been aggressive. There might have been many atrocities. Yet, it must be said in fairness to the accused that one thing that has not been established in this case is that the accused designed to conduct this war in any ruthless manner.
Insults and expositions to public curiosity in contravention of Article 2 of the Geneva POW Convention 1929 are supported by Exhibits 1,969, 1,973 and 1,975.
Exhibit 1,969 is the report dated October 1942, from the Governor of Kanagawa, to the Ministers of Welfare and of Home Affairs, which was also sent on to the Commander of the Eastern Area Army and the War Ministry. It states: Though the public has not been informed of POW labour, those who
have guessed about it from seeing them on their way to and from the place of labour and their camps seem to realize with gratitude the glory of the Imperial Throne, seeing before their eyes British and American POWs at their labour. A considerable influence seems to have been exercised over the people of this prefecture, many of whom had been considerably pro-Anglo- American .”
Exhibit 1,973 is a signal which on 4 March 1942 the Chief of Staff of the Korean Army sent to the accused KIMURA the then Vice-Minister of War, in which he says, As it would be very effective in stamping out the respect and admiration of the Korean people for Britain and America, and also in establishing in them a strong faith in victory and as the Governor general and the Army are both strongly desirous of it, we wish you would intern thousand British and thousand American prisoners of war in Korea”.
On 23 March 1942, the accused ITAGAKI, as Commander-in-Chief of the Korean Army, sent to the accused TOJO a plan for the internment of prisoners of war. In this plan he sets out the purpose as follows:
“It is our purpose by interning American and British prisoners of war in Korea to make the Koreans realize positively the true might of our empire as well as to contribute to psychological propaganda work for stamping out any ideas of worship of Europe and America which the greater part of Korea still retains at bottom." (Exh. 1,973, p. 3).
The Prosecution in its summation described Exhibit 1,975 thus: “On 13 October 1942, the Chief of Staff of the Korean Army sends to the accused KIMURA a report of the parade of 998 POW along bystander-thronged roads of Fusan, Seoul and Jinsen in Korea. He says: ‘As a whole, it seems that the idea was very successful in driving ail admiration for the British and Americans out of their (i. e. , the Koreans’) minds and in driving into them an understanding of the situation’."
Exhibit 1,975, however, does not speak of any such PARADE of the prisoners of war. The report gives “reactions among the general public following internment of British prisoners of war”, and says “the arrival of 998 prisoners captured in Malaya had so great an effect upon the people in general, especially upon the Koreans, that about 120, 000 Koreans and 57, 000 Japanese bystanders lined the roads of Fusan, Seoul and Jinsen to see the prisoners of war being transported”. Certainly this was not “parading the prisoners for exposing them to public curiosity”. The Prosecution certainly cannot suggest that in all other countries prisoners of war are transported through roads protecting them from public gaze, I do not think Article 2 of the Geneva Convention prohibits such transportation. These prisoner soldiers were certainly accustomed to walk through public streets and were equally accustomed to public gaze. Even if the fact of their having been prisoners of war degraded them in the eyes of any public, they were not entitled to any protection from their gaze. There is no allegation of any molestation or insult offered to them by the public.
I must first of all point out that Article 2 of the Geneva Convention 1929 is not applicable to this case. I have already explained why I say so.
But apart from that question, I do not think that these really indicate anything intended to insult these prisoners of war. It is not in evidence that these prisoners of war were actually treated in any insulting manner. No abnormal treatment was accorded to them. They were not even exhibited for the purpose of exhibiting them to the public. They were taken to those places simply to convince the people there that even white soldiers could be defeated and could be taken prisoners. Their faith in white supremacy was considered by the Japanese authorities concerned to be mere myth and they simply thought that the very fact that white soldiers could be taken prisoners would demolish that myth. I do not see why this should be looked upon as an insult or exposition to public curiosity.
The Prosecution complains that the prisoners of war were compelled to sign agreements and take oaths not to escape, in contravention of the spirit of Article 2 of the Hague Convention, 1907.
The Japanese during the Pacific War made certain regulations and laws under which they authorized the compulsory administration to prisoners of oaths that they would not escape, and providing heavy penalties for breaches of such oaths.
Exhibit 1, 965 is the detailed regulations for the treatment of prisoners of war. Article 5 relates to non-escape oath. Article 10, relating to discipline law for prisoners of war enacts: “Those persons who have taken oath not to escape and who violate this oath shall be subject to either hard labour or imprisonment for a minimum of one year.”
Articles 5 and 10 referred to above were introduced into Japanese law in March and April 1943, respectively. Article 10 has a somewhat similar counterpart in Article 5 of the law No. 38 of 1905.
The Prosecution points out that according to Japanese official figures, between 2 June 1942 and 3 March 1945 sixty-four prisoners were convicted by court-martial for violation of non-escape oath and received sentence ranging from one year’s imprisonment to death (Exh. 1,998).
The imposition of these illegal penalties was known to the Japanese Government because monthly returns were required of all court-martial punishments and of all disciplinary punishments enforced (Exh. 1,999) . These returns were sent to the Prisoner of War Information Bureau.
I do not consider that making of oaths or agreements not to escape would be criminal on the part of the members of the government which authorized such things. I would again point out that the Geneva Convention of 1929 was never ratified by Japan, and neither the Geneva Convention nor the Hague Convention as such was applicable to this case.
Perhaps here is an occasion when the overwhelming number of surrenders in this case would specially affect the position. The steps taken by the Japanese authorities in this respect would be mere acts of state. I would not find any of the accused criminally liable for them.
The punishment of escaped prisoners, according to these regulations a- gain would be mere act of state. It is not the case of the Prosecution that anything was done in this respect in breach of such regulations or without trial.
The Prosecution case regarding transportation of prisoners of war by sea in substance is that in every such case there were violations of the conventions. The Prosecution lays emphasis on the common features of such violations. According to it, these common features are overcrowding, underfeeding, inadequate sanitation and ventilation, lack of medical supplies and water, and ill-treatment of the prisoners.
Similarity of pattern of crimes in this respect is claimed by the Prosecution to be indicative of the fact that they were committed as a matter of government policy or of government indifference. The Prosecution points out as significant that not one of the accused has, by himself or by witnesses, given any evidence of any real attempt to prevent the commission of these crimes.
As regards the Cabinet Minister, the Prosecution urges that it was clearly his duty upon learning of the commission of these crimes to bring the fact to the notice of his colleagues in the Cabinet, and to resign unless effective steps were taken to prevent their commission. There was no evidence that any of them ever raised the question of war crimes in the Cabinet. Their failure to do so makes their guilt greater.
The Prosecution further submitted that there was a clear duty upon every official who knew about the commission of any of these war crimes to use such power as he possessed to put the matter right at once, at least to the extent of bringing the outrages to an immediate stop.
Here again the special difficulty created by the overwhelming number of surrenders must be taken into account. I do not accept the evidence on this point at its face value; but, even making every possible allowance for exaggeration and distortion, it cannot be denied that there was overcrowding, underfeeding and inadequacy in sanitation and ventilation. There certainly were also instances of ill-treatment of the prisoners during transit; but I cannot accept it as indicative of any government policy or government indifference.
The Prosecution contention that the Cabinet ministers should have resigned on this issue really contemplates an ideal state of affairs, but I do not think we can measure for our present purposes the conduct of the prisoners with such an ideal standard.
There is no evidence that the matters now disclosed by evidence were known to the Cabinet Minister at the time of their occurrence.
The ‘Bataan Death March’ is really an atrocious brutality. It was sought to justify the Bataan death march on the grounds that it was unavoidable as neither transport nor food was available (R.P.27,764)
Even if that were true, it would not justify the treatment meted out to the marching prisoners. Throughout a nine-day march, over 120 kilometers under a blazing sun, about 65,000 American and Filipino prisoners were kicked and beaten by their guards; the only drink they had was water from caribou wallows; the only food, that which was thrown to them by Filipinos. Those who through illness or fatigue fell out of the march were shot or bayonetted (R. P. 12, 579-91).
The Prosecution sought to meet the claim as to lack of transport by the evidence in the form of an affidavit made by Major-General King, the Commanding General of the American Forces at Bataan. He says, “In destroying arms and equipment in preparation for surrender, I had reserved enough motor transportation and gasoline to transport all my troops out of Bataan. I pleaded, after my surrender, that this be done, offering to furnish personnel as might be required by the Japanese for this purpose. . . . The Japanese told me that they would handle the movement of the prisoners as they desired, that I would have nothing to do with it, and that my wishes in that connection could not be considered." (Exh. 1,448)
Whatever that be, I do not think that the occurrence was at all justifiable. At the same time I fail to see how we can make any of the present accused responsible for it. It is an isolated instance of cruelty. The man responsible for it has been made to account for the same with his life. I cannot connect any of the present accused with this incident.
The Prosecution case regarding the employment of the prisoners of war upon tasks having relation with the operation of the war is that the prisoners were so employed by the Japanese Government in violation of the Provisions of Article 6 of the Hague Convention, 1907, and Article 31 of the Geneva Convention 1929.
Article 6 of the Hague Convention, 1907, provides inter alia that tasks upon which prisoners of war are employed “shall have no connection with the operation of the war”.
Article 31 of the Geneva Prisoner of War Convention, 1929, states that “labour furnished by prisoners of war shall have no direct relation with war operations”.
A series of official Japanese documents, which have been put in evidence, show that the Japanese Government, deliberately and as a matter of policy, engaged its prisoners of war in such labours. The following are some of such documents:
1. Exhibit 2, 010—a communication dated 6 May 1942 to the Chief of Staff of the Taiwan Army. The accused KIMURA states, “so that they can be used for the enlargement of our production and as military labour, white prisoners of war will be confined successively in Korea, Formosa and Manchuria”.
2. In the monthly reports of the secret service police for August 1941 is set out a plan to use prisoners of war as a result of the labour shortage (Exh. 1,972-A, R. P.14, 509)
The plan says, “Owing to the good results obtained by 150 American prisoners of war at Zentsuji POW Camp who had been sent to Osaka in order to engage in labouring works as a neutralizing measure for labour shortage suffered in the military works and harbour equipment, the enterprising circles who were suffering from the labour shortage at several districts around Tokyo .... applied to the military authorities to allow them to use prisoners of war .
3. Exhibit 1, 970-A—letter dated 22 August 1942 from the accused KIMURA as Vice-Minister of War to the Chief of Staff of the Kwantung Army:
“For the realization of the urgent organization of the aircraft production we want to improve the present capacity of the Manchuria Machine Tool Company according to the plan of utilization enclosed herewith, and to allot a large part of its improved capacity to the production of machine tools which are necessary for the urgent organization for the production of air ordnances, ammunition and aircraft in our country. ...” The plan which is referred to envisages the employment of 1,500 war prisoners.
4. Exhibit 1, 971-A—Foreign Affairs Monthly Report, September 1942, published by the Foreign Section of the Police Bureau of the Home Ministry. This speaks of the labour shortage problem in Japan and of a decision arrived at at a conference held by the Cabinet Planning Board, according to which it was decided: “Of the industries in the National Mobilization Plan, war prisoners shall be employed for mining, stevedoring and engineering and construction work for national defense”.
5. Exhibit 1,967—letter dated 2 October 1942 from the Chief of Staff of the Eastern District Army to the accused TOJO, requesting his sanction of the employment of the war prisoners in the Tokyo POW Camp for, amongst others “ industrial labour for the expansion of productive power” at “munition factories for expanding production”. This was approved by the War Minister.
6. Exhibit 1,969—A report of the Governor of Kanagawa Prefecture to the ministers of Welfare and Home Affairs, dated 6 October 1942, which states as follows:
“It is generally admitted by all the business proprietors alike that the use of POW labour had made the systematic operation of transportation possible for the First time, and has not only produced a great influence in the business circles but will also contribute greatly to the expansion of production, including munitions of war. ”
7. Exhibitl,976—A report dated 4 September 1942 from the accused ITAGAKI as Korean Army Commander to the accused TOJO. This report sets out regulations in use in the Korean POW camps. They include the following:
“Article 2- Not one POW must be left to time in idleness. Allow appropriate labour according to their skill, age and physical strength, thereby using them in industrial development and military labour.”
Regarding the employment of the Officer prisoners, the prosecution relied on the following documents:
1. Exhibit 1,961—On June 3, 1942 the Director of POW Custody Division sent a circular to army units on the subject of labour imposed on POW officers and non-commissioned officers. It states, “Although the imposition of labour upon POW officers and noncommissioned officers is prohibited under Article 1 of the POW regulations, it is the policy of the central authorities, in view of the present condition of this country which does not allow anyone to lie i- dle and eat freely, and also with a view to maintaining the health of prisoners of war, to help them volunteer to work in accordance with their respective status, intelligence, strength, etc. Therefore it is desired that proper direction be given accordingly.”
A similar notification was sent to the Chief of Staff of the Taiwan Army on 5 June 1942 (Exh. 2,003)
2. On 4 September 1942 the accused ITAGAKI, as Commander of the Korean Army, sent to the accused TOJO a report on the regulations enforced in the Korean prisoner of war camp (Exh. 1, 976). Article 3 of these regulations reads as follows:
“All prisoners of war, including officers, shall work. But guide those above warrant officers according to status, ability and physical strength to work voluntarily."
Apart from the question whether the Hague Convention or the Geneva Prisoner-of-War Convention is applicable to this case, the provisions therein speak of certain prohibited labour.
Whatever may be the meaning of the expression, “direct relation with war operations” in these days of total war, it cannot be denied that there is
some evidence of the prisoners having been used for transporting materials intended for combatant units.
I wouldj however, consider this violation as a mere delinquency on the part of the state. These are mefe acts of state. I would not make any of the accused criminally responsible for such violations. The same observation would apply to the cases of compulsory employment of officer prisoners.
As regards the Burma-Thailand railway, the Prosecution case may be summarized thus:
From August 1942 onward, prisoners of war were despatched from Singapore and the Netherlands East Indies to Burma and Siam to construct a railway line from Kanchanburi in Thailand to Thanbuyzayat in Burma for the purpose of supplying Japanese troops in Burma who were preparing to invade India. The total distance was about 400 kilometers and the greater part of that was over virgin mountainous jungle, and it was built from each end at the same time. In all, about 46, 000 prisoners of war were employed and, of these, 16, 000 died in a period of 18 months from starvation, disease and ill- treatment (R. P. 5, 415, 5, 434-41). Japanese sources place the maximum number of prisoners employed at 49, 776 and the deaths at 7, 746 (Exh. 473, R.P. 5,492). In addition, from 1,20,000 to 1,50,000 Indonesians, Burmese, Chinese and Malayans were employed and their death-roll from the same causes was estimated at 60, 000 to 1,00, 000 (R. P. 5, 415 and 5, 434- 41)
The Prosecution evidence that the line was being constructed for operational reasons is corroborated by Japanese documents that came into existence in 1944. Thus in a report dated 6 October 1944 from Chief of Staff, Southern Army, to the Chief of Prisoner of War Information Bureau, the following statement appears:
. For strategic reasons the completion of this railway was most urgent. Since the proposed site of this railway line was a virgin jungle, shelter, food, provisions and medical supplies were far from adequate and much different from normal conditions for prisoners of war. ...”
A communication received on October 4, 1944, at the same Bureau from the Chief of Prisoner of War Camps in Siam states inter alia:
“At that time .... provisions and rations were scarce. Quarters and establishments were poor and medical facilities were inadequate. Moreover, for strategic reasons, it was necessary to complete the railway by August and the work was pushed forward at a terrific rate, with the result that many prisoners of war became ill and many died." (Exh. 473, R. P. 5, 492)
There is ample Prosecution evidence to show that the deaths of prisoners were due to ill-treatment, excessive labour, starvation, disease and medical neglect (R. P. 11, 411-41, 11,478, 13,000-11, 13,020-35; Exh. 1,561- 70, Exh. 1,574-5, 1,580)
“F” Force and “H” Force arrived in Thailand from Singapore in April and May 1943, respectively. The latter force was 3, 000 strong and had a death-roll of 900 in seven months.
The decision to construct the railway was made by Imperial General Headquarters in response to a request from Southern Army Headquarters (R, P. 14, 633). Subsequently, in February 1943 Imperial General Headquarters decided for operational reasons to speed up the construction by four months but later extended the new period by two months (Exh. 475, R. P. 5, 513). The result was that the line was completed in October 1943, two months earlier than was originally planned (R. P. 5, 437).
The Defense does not deny the facts generally, but attributes the deathrate to the early onset of the rainy season preventing the transportation of supplies (Exh. 475, R. P. 27, 412-24 and 27, 746) . It says that the Southern Army Commander, realizing that the success of the construction depended upon sanitation, sent medical teams to the area to study and improve the sanitary conditions, to investigate malaria with a view to controlling it, and to purify water supplies. The Southern Army Headquarters had been advised by its medical officers of the grave danger of the prisoners contracting diseases, and from the end of 1942 onward of the growing death-rate among them (R. P. 27, 746).
Even if this were so, if the Japanese had exercised every care and the deaths were solely attributable to the unexpected onset of the rainy season they would, in the circumstances, have committed a war crime. Southern Army Headquarters had no right to send prisoners of war to work in an area which it knew to be gravely dangerous to health, and further, it had no right to employ prisoners on the construction of a railway line to be used for military purposes. There can be no doubt that it was the intention of the Japanese at that time to use the line solely for military purposes, to supply and reinforce their troops in Burma.
But it was clearly not the rainy season that caused the deaths although it may have increased them. As early as March and April, even on the Japanese figures, the monthly death-roll already exceeded 200. If the rainy season had then already commenced, why send “F” and “H” forces there at the end of April and in May? (R. P. 5, 439)
Further, the deaths were almost entirely limited to the prisoners of war.
It follows that the deaths among the prisoners were due to the fact that they were subjected to conditions to which the Japanese were not subjected. They died from ill-treatment, excessive labour and unnecessary medical neglect and starvation.
This is the Prosecution case. I would divide this case into the following two parts:
1. Employment of the prisoners of war in the work having direct relation with war operations;
2. The inhuman treatment of the prisoners of war.
As regards the employment, I do not hesitate to say that the accused TO- JO was fully responsible for it; but this violation of the rules regarding the labour of prisoners of war is a mere act of state. It is not criminal per se and I would not make him criminally liable for it.
As regards the inhuman treatment of the prisoners, during this employment, the evidence does not satisfy me that it was due to any inaction on the part of any of the accused, including TOJO, or that it was such as could have been, in any way, foreseen by any of the accused.
The most important witness examined in this connection is Colonel Dalrymple Wild. The relevant portion of his evidence commences at page 5, 434 of the record.
An analysis of this evidence will disclose the following:
1. From September 1942 the prisoners were taken over by the prisoner of war administration department.
2. Until September 1942 the prisoners were under the control of the 25th Army Headquarters and working camps were under the control of different Japanese units:
(a) In September 1942 they were taken over by the administration centre in Tokyo.
(b) Malaya and Sumatra were grouped together in one prisoner of war area under the command of Major Fukuye and of the prisoner of war administration.
(c) As regards care and administration of prisoners of war, he took his orders from Tokyo. He had no duties whatsoever outside that of administration of prisoners of war.
3. The basis of administration was the same regarding the Burma- Siam railway, the commanding officer being a major general in charge of POW administration in Siam.
(a) From August 1942 onwards, men were being dispatched from Singapore to the Burma-Siam railway.
(b) They included a large number who had come from the Netherlands East Indies to Changi camp.
(c) Some had been sent by sea to Formosa and others by sea to Burma.
(a) Prisoners began to leave Singapore to work on the Burma-Siam railway in August 1942-
(b) The first to go to Burma was a party of Australians, under Brigadier Varley, called “A” Force.
(c) The witness accompanied “F” Force. They started in the latter part of April 1943. They were 7,000 in number, of whom about 3, 600 were Australians and 3,400 were British.
(d) 3,100 out of this 7, 000 died. The survivors got back to Singapore in April 1944.
(e) The total casualties during the construction of the railway amounted to 16,000 out of 46,000.
(f) The work was finished by the end of October 1943.
(a) The whole of those deaths were duly recorded.
(b) The witness’s party remained under Malaya POW administration. The figures were always sent to the headquarters of the Japanese at Ghangi camp for onward transmission to Tokyo. As regards the other parties, they were under the same POW administration. Their figures were similarly
reported as they occurred to the major general’s headquarters at Tarso, Siam. One copy was forwarded by Major General Sassa to the headquarters of the POW administration in Tokyo.
(c) There were nearly 1,50,000 Asiatic labourers employed in the construction works. Of them 1,00, 000 died.
7 . The witness gives details of the work done by the prisoners of war and of the ill-treatment beginning from April 1943.
From the evidence of this witness, it becomes apparent that the overzealousness of the local officers was mostly responsible for the disaster that happened. At page 5, 445 of the record we are given an instance of such overzealousness on the part of Major General Arimura at Ghangi. The witness explained to the major general that there were not 7, 000 fit men in Changi and that the most the witness could raise would be 5, 000 men. The witness then says: “Major General ARIMURA’s headquarters were most reassuring about it all. We were officially told that we must take two thousand unfit men whom the Japanese agreed to classify as non-walking sick. I was told that the sole reason for the move was that the food situation was getting difficult on Singapore Island; we were not going to working camps but to health camps; it was a nice place in the mountains, and none of the men would be required to leave their health camps to work; the most that we should be required to do would be to look after ourselves and do necessary work inside the camp; it would be in the best interests of the sick men to take them because they would have a better chance of recovering in these health camps than if they remained in Changi, as the food was short.”
This only shows over-zealousness on the part of General ARIMURA and his roguish character. Certainly this could not in any way be connected with any steps taken by Tokyo. Then again, what we are told by Colonel Wild at page 5, 457 of the record only indicates the brutality of a corporal. Fifty men were sick. The corporal, in spite of that, would make them march during the night. The witness took these fifty men to a Japanese medical officer. The Japanese corporal concerned was also with the party. The medical officer gave them some medical treatment and agreed that thirty-six of them should not march that night. At the witness’s suggestion he gave this as an order to the Japanese corporal. Yet when the fifty men were brought back to the camp the Japanese corporal gave instructions that only fourteen should stay behind that night instead of thirty-six. After reporting this again to the Japanese medical officer, the witness succeeded in getting an order in writing from the medical officer to his own sergeant major that the thirty-six men should stay. This was given to the corporal. In spite of that, the corporal made the men march.
Similar is the story of over-zealousness shown by Lt. Colonel BANNO, the Japanese Commander of “F” Force. The account is given by the witness at pages 5, 459-60 of the record.
The Australian marching party was being accommodated within a few yards of huts in which a large number of Asiatic labourers were dying from
cholera. Colonel Harris described the situation to Lt. Colonel BANNO at the staging camp at Konquita and warned, “You must either stop the march or by pass Konquita. If you don’t, we will have a violent outbreak of cholera in all our camps within a week”. Lt. Colonel BANNO was obstinate. The consequence of the obstinacy was outbreak of cholera in the Australian marching party. Lt. Colonel BANNO was an officer of the POW administration of Malaya and Sumatra.
Similar again is the account of unnecessary brutality of some of the Japanese engineers described by the witness at page 5,477 of the record. The actual perpetrators of these atrocities are not before us. I believe those of them that could be got hold of alive have already been made to answer for their brutalities. Colonel Wild himself told us in his evidence recorded at pages 5, 684-85, that since his engagement “in war crimes investigation in South East Asia, South East Asia Command” nearly four hundred cases had been brought to trial; of these, in over three hundred cases, the trial had been completed resulting in “well over a hundred death sentences and about a hundred and fifty, terms of imprisonment”.
These were exclusive of those brought to trial by Australian Courts, Dutch Courts and American Courts. So, there is no scope for any apprehension of any mistaken clemency having been shown towards any of the alleged perpetrators of all these foul acts. We are here concerned with a different set of persons. Certainly nothing has been placed before us which would entitle us to say that they should have even foreseen such brutalities or over-zealousness on the part of these persons.
The evidence of Colonel Wild rather goes to show that these local officers were conscious of their own guilt in showing such over-zealousness and therefore resorted to steps to conceal the effect of their over-zealousness from the Tokyo authorities. The Japanese medical officer interpreter of “F” Force compelled the witness’s party to alter the cause of death to diarrhea. Similar suppression of the actual state of affairs in the locality is suggested against the Kempeitai at Kanchanburi at pages 5,485-86 of the record by the witness.
The evidence of this witness also makes it clear that the construction of the railway in question was not devised by the relevant authorities in Tokyo in expectation of utilizing the prisoner of war labour. Lay labour was very largely recruited for the purpose. Prisoners of war were employed only as a last resort.
A peculiar use has been made by the prosecution of its Exhibit 475. This exhibit purports to be a report on employment of war prisoners in the Siam- Burma railway construction. The prosecution offered it in evidence and described it as a report by the Japanese government on the Burma-Thailand railway.
The prosecution told us that “ this was a document prepared by the Japanese War Ministry immediately AFTER the surrender of Japan and forwarded by them on the 19 December 1945 to the Supreme Commander, but prepared of their own motion and not on demand” . We received it in evidence on 11 September 1946 and marked it Exhibit 475. Obviously it was a document sought to be relied on by the prosecution. Subsequently, however, the prosecution went on seeking contradictions of its contents from the witness, Colonel Wild, as if it were being relied on by the defense.
The defense certainly did not rely on this document and, even if its contents be of any evidential value, it would only be a piece of evidence against them to be weighed by us with other evidence. Its having been prepared by the Japanese War Ministry would not, in my opinion, give it any greater weight as against the present accused, specially when we know that it was prepared AFTER the surrender of Japan and we do not know on what materials, and for what purpose it might have been thus prepared by its authors. If this report is founded on any relevant materials, such materials must have been available even after the surrender; and we were entitled to have those materials before us in order to see what conclusion we could draw for ourselves from them. If there were no such materials before the author or authors of the report, the report is absolutely worthless as a piece of evidence and is only calculated to create prejudice against the present accused.
This report is divided into three parts: The first part refers to protests by allied powers; the second purports to give details of investigations; and the third part gives the conclusion.
The final conclusion of the report stands thus:
“l. The foregoing is an explanation of the circumstances which compelled a heavy toll of life during the progress of the construction work. In the final analysis, causes of the tragedy may be traced principally to the placement of a time limit on the construction, the immense difficulty in making thorough preparation and to the precipitancy with which the Japanese soldiers, despite their lack of experience in such large-scale construction work and meagre scientific equipment, dared to carry on their work in strict obedience to orders which they characteristically regarded as imperative. Thus the occurence of the casualties, it must be declared, was by no means due to any deliberate intention on the part of the Army Authorities.
“As regards the employment of prisoners of war in the . above construction work, it may be stated that at the time the Japanese Army as a whole entertained the ideas that the employment of prisoners of war in any work other than military operations was not a breach of the Geneva Convention, Furthermore, it is to be insisted that the incident was of a radically different character from the so- called maltreatment of prisoners of war,
“2. The incident, already stated was an inevitable outcome of the situation then prevailing, and, if anyone is to be called to account for the dreadful death-rate, the responsibility ought to be placed on the then Chief of the General Staff (General Sugiyama) who ordered the construction, the War Minister (General Tojo) who sanctioned the employment of prisoners and the Commander-in-Chief of the South Area Corps (General Terauchi) who was entrusted with the construction on the spot,
“3. As regards individual cases of maltreatment of prisoners of war, it is desired that investigation be started upon the further receipt from the Allied Powers of a report of the details, particularly the ranks, and names of the suspected offenders, and if, as a result, they should be found guilty severe measures should be meted out to them.”
The author of the report traces the causes of the tragedy to the placement of a time limit on the construction. The witness, Colonel Wild, gave us just another version.
Colonel Wild deposed: “We told the Japanese that the way they were treating their labour, both Asiatic and military, was, from a soldier’s point of view, worse than a crime; it was a blunder. We told them, and I consider now, that if they had treated their labour properly and fed it and housed it and given it reasonable working hours, they would have finished that railway by the time they wanted to. We told them then, and I consider now, that as a result of the way they treated their labour they were months later than they intended in finishing that railway, and in consequence lost a campaign which it was intended to supply in Burma.”
The urgency of the completion of this railway was not responsible for the disaster that happened. It is in the evidence of Colonel Wild that there might have been no difficulty in the completion within the scheduled time had the prisoners and the labourers been treated well. The maltreatment was responsible for the delay, not the shortage of time, responsible for the disaster. Those, therefore, who might have been responsible for fixing the time limit did not in any way miscalculate and certainly their calculation was not responsible for what happened to the prisoners.
Whatever value the report may otherwise have, certainly it has no evidentiary value as to the apportionment of guilt made by it. In my opinion, in the absence of the materials on which it might have been based, this report should not have come in at all.
The members of the general headquarters and the War Minister certainly were responsible for the employment of prisoners of war in this construction work. That act is not mala in se and I would not make any of these persons criminally liable for it.
As regards the disaster that happened to the prisoners of war, there is no evidence before us that there were any materials before these authors which should have led them to foresee these consequences. Most of these consequences were due to the over-zealousness of the local officers. It is difficult to trace the responsibility for this disaster to the War Minister or any other member of the cabinet in order to fix any criminal liability on them.
Espionage occupies a peculiar position in international law. It has always been considered lawful for a belligerent to employ spies to obtain the necessary information.
Article 24 of the Hague Regulations enacted that ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible. The fact, however, that these methods are lawful on the part of the belligerent who employs them does not protect from punishment such individuals as are engaged in procuring such information. Although a belligerent acts lawfully in employing spies and traitors, the other belligerent, who punishes them, likewise acts lawfully. Persons committing acts of espionage are considered war criminals and may be lawfully punished. The usual punishment for spying is hanging or shooting. A spy, however, may not be punished without a trial before a courtmartial.
The prosecution case is that some of the prisoners of war were convicted of espionage and sentenced to death, and one was convicted of attempted espionage, and sentenced to fourteen years imprisonment. It is not the prosecution case that any of the prisoners were punished in this respect without a trial.
I do not think anything has been placed before us which would entitle us to say that the convictions of espionage charges were wrongfully made. At any rate, these prisoners were charged of espionage, tried by the proper organ and convicted by the same. I do not see how we can make any of the accused criminally responsible for it.
The treatment meted out to the Allied airmen is one of the gravest of the charges against Japan.
The prosecution case, in this respect, begins with the treatment of the crews of the American planes commanded by Colonel Doolittle which raided Japan on the 18th April 1942. The crews were captured in China. The prosecution case is that subsequent to their capture “Regulations for the Punishment of Enemy Aircrew” were made in China by the accused HATA on the 13th August 1942. The crews of these planes were tried by courtmartial under these regulations and were sentenced to death. Later, the sentences in respect to five of them were commuted to life imprisonment. The remaining three were executed. These regulations had provided death penalty for homing, strafing or otherwise attacking civilian or non-military objectives. In support of this case reliance is placed by the prosecution on exhibits 3, 129 to 3, 131 record pages 27,902 to 27,908 and exhibits 1,991 to 1,993 record pages 14, 662 to 14,670.
The prosecution then makes cases of execution of captured airmen without trial in the following places:
1. Bougainville — Two cases in December 1943 and one in May 1943.
One case in July 1944 and another in November 1944.
One case on 29 March 1943 and another in 1944. One case on 29 August 1944 and another on 21 September 1943.
Two cases on 13 September 1944, eight in the latter part of September 1944, nine in October 1944, one in January 1945, two in February 1945, one in July 1945, four on 23 March 1945 and another about June or July 1945.
Seven cases in June 1945.
Three cases in February 1945.
One incident in February or March 1945.
Incident of 4th November 1945.
One incident on 26 March 1945.
One case in December 1944 or January 1945, another in June 1945 and several others between May and July 1945.
Several cases from 11 May 1945 to 15 Auerust 1945.
Exhibit 1,992 is a communication dated 28 July 1942 “dispatched from Vice War Minister KIMURA, Heitaro, ” to “each Chief of Staff stationed in Japan, ” regarding “Treatment of Enemy Air Crew Members”.
It runs as follows:
“I request you to take note and understand that the following decision was made in regard to the treatment of enemy air crew members who entered our jurisdiction with the object of raiding Japanese territory, Manchukuo and our regions of operation:
“l. Those who do not violate the war-time international law shall have to be treated as POWs and those who showed actions of violating the said law shall be treated as war-time capital criminals.
“2. Defense Commander-in-Chief of various places (including troops stationed in Japanese territory, outside Japan and the Governor of occupied Hongkong) shall send for court-martial such enemy air crew members, who entered the respective jurisdiction and are suspected of deserving treatment as war-time capital criminal. In regard to the above court-martial, the provisions of the Specially Established Court-Martial stated in the Army Court-Martial Law shall be applied."
Exhibit 1,993 is a “Notification of Matters Pertaining to the Treatment of Crew Members of Raiding Enemy Planes”, of the same date from “imperial Headquarters, Army Section Staff” to “Mr. Jun ATOMIYA, Chief of Staff, China Expeditionary Forces”. It runs as follows:
“Articles of War of 00 Army (Draft)
“Article 1. These articles of war shall be applicable to the crew members of enemy planes raiding our Imperial Domain, Manchukuo or our zone of operations and falling into the powers of OO Army.
Article 2 . Those having committed the acts listed below shall be subjected to military punishment:
“ 1. To bomb, strafe and conduct other types of attacks for the purpose of threatening and wounding or killing the ordinary populace.
“2. To bomb, strafe and conduct other types of attacks for the purpose of destroying or ruining private properties possessing no military characteristics.
“3. To bomb, strafe and conduct other types of attacks against targets other than military targets unless inevitable.
“4. To conduct outrageous and inhuman acts ignoring humanity, besides the aforementioned three paragraphs.
“This is also applicable to those coming to attack our Imperial Domain, Manchukuo, or our zone of operations with the purpose of committing the acts mentioned in the above paragraphs, but having fallen into the powers of OO Army prior to having accomplished them.
“Article 3. The military punishment shall be death. However, depending on the situation, it may be changed to life or imprisonment of over ten years.
“ Article 4 . Death shall be by a firing squad. Imprisonment shall be at a place to be designated later, and they shall be subjected to prescribed labour.
“ Article 5 . When specific reasons exist, the execution of military punishment shall be suspended.
“Article 6, In regard to imprisonment, regulations pertaining to penal servitude of the criminal law shall be applicable, besides those stipulated in these articles of war.
“These articles of war shall become effective as of -- day of -- month of --year.
“These articles of war shall be applicable against de post facto acts.” Exhibit 1,991 is the “Regulations for Punishment of Enemy Air Crews” dated 13 August 1942, obviously adopting the above draft. The Regulations stood thus:
“These military regulations shall be applicable to enemy flyers who have raided Japanese territories, Manchukuo, or our operational areas and have come within the jurisdiction of the Japanese Expeditionary Forces in China.
“Those who have committed the following acts shall be liable to military punishment;
“(l) Bombing, strafing, and other attacks with the object of threatening or killing and injuring ordinary people.
“(2) Bombing, strafing, and other attacks with the object of destroying or damaging private property of a non-military nature.
“(3) Bombing, strafing, and other attacks against objects other than military objectives, except those carried out under unavoidable circumstances.
“(4) Violations of wartime international law.
“The same shall be applicable to those who, with the object of carrying out the acts enumerated in the preceding paragraph, have come to raid Japanese territories, Manchukuo, or our operational areas and have come within the jurisdiction of the Japanese Expeditionary Forces in China before accomplishing this object.
“Death shall be the military punishment. However, life imprisonment or more than ten years confinement may be substituted for it according to extenuating circumstances.
“Death shall be by shooting.
“Confinement shall be effected in a detention place and prescribed labour imposed.
“Under special circumstances the execution of military punishment shall be remitted.
“In respect to confinement, the provisions of the criminal law concerning penal servitude shall be correspondingly applicable, in addition to the provisions of these military regulations.
“These military regulations shall be enforced from 13 August 1942 (Showa 17).
“These military regulations shall be applicable also to the acts committed previous to their enforcement.
“Enemy flyers who have raided Japanese territories, Manchukuo, or our operational areas, come within our jurisdiction, and violated wartime international law shall be tried by court-martial and sentenced to either death or heavy punishment as important war criminals.”
Exhibits 3, 129 and 3, 130 are the defense documents, showing the trial and conviction of these fliers by a court-martial.
The charges in the case of the execution of the allied airmen fall under two heads: (l) Execution on trial and (2) Execution without trial.
Under the heading, Execution on Trial, it is alleged that this trial took place under an ex post facto law and that this making of ex post facto law itself was a crime.
I have already considered the question of the scope of legislative power of a belligerent in respect of the trial and punishment of prisoners of war for war crimes, and have denied this right to any belligerent power, including the victors.
There I have pointed out how the Tribunal at Nuremberg accepted the Charter creating that Tribunal as defining war crimes and thereby giving it a binding law in that respect. It seems that the victor powers think that international law authorizes them to make law in this respect. Whatever be my views, if the victor nations, and, for the matter of that, so many judges of the tribunals set up for the purpose of trying the war criminals could hold that it was open to the victor nations to create ex post facto law for the trial of prisoners of war, I would be reluctant to fix any criminal responsibility on the authors of the ex post facto law for the trial of allied airmen. I should not ascribe any mala fides to this action of theirs.
The Charter, we should remember, not only gave ex post facto law but gave it not even for general purposes but for the purposes of trial of the particular prisoners. It was ex post facto law meant not for all people but for a special person or a special group of persons.
In judging the bona fides of the authors of these regulations, we must remember that as yet air warfare is not provided with any rules of conduct. The states represented at the Washington Conference of 1922 on the limitation of armaments decided on the appointment of a commission of jurists charged with the task of proposing a code of air warfare rules. The British Empire, the United States of America, France, Italy and Japan were represented at that conference. Holland was subsequently invited to participate in the work of the commission.
In 1923 the Commission produced the proposed code of rules. This, however, was not ratified by any of the Powers. The code is of importance only as an authoritative attempt to clarify and formulate rules of law governing the use of aircraft in war; it will doubtless prove a convenient starting point for any future steps in this direction. But, in any case, this has not as yet been done, and it seems none of the belligerents including the allied powers paid any heed to these rules.
The Commission made certain rules regarding bombardment. They stated: “The subject of bombardment by aircraft is one of the most difficult to deal with in framing any code of rules for aerial warfare. The experiences of the recent war have left in the minds of the world at large a lively horror of the havoc which can be wrought by the indiscriminate launching of bombs and projectiles on the noncombatant populations of towns and cities. The conscience of mankind revolts against this form of making war in places outside the actual theatre of military operations, and the feeling is universal that limitations must be imposed.
In its proposed Article 22, the Commission suggested “aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non combatants is prohibited”.
In Article 24 it suggested:
“ 1. Aerial bombardment is legitimate ONLY when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military objective to the belligerent.
“2. Such bombardment is legitimate ONLY when directed EXCLUSIVELY at the following objectives: Military forces; military works; military establishments or depots; factories constituting important and well-known centres engaged in the manufacture of arms, ammu
nition or distinctly military supplies; lines of communication or transportation used for military purposes.
“3. The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighbourhood of the operations of land forces is prohibited. IN CASES WHERE THE OBJECTIVE SPECIFIED IN PARAGRAPH 2 ARE SO SITUATED THAT THEY CANNOT BE BOMBED WITHOUT THE INDISCRIMINATE BOMBARDMENT OF THE CIVILIAN POPULATION, THE AIRCRAFT MUST ABSTAIN FROM BOMBARDMENT.
“4. In the immediate neighbourhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings or buildings is legitimate, provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population.”
We are told that there were four main viewpoints which the Commission took of the work before it:
2. National point of view of the respective delegations;
3. The juridic point of view with regard to the laws of war;
4. The combatant point of view with regard to the conduct of war in which the combatant services considered their respective nations both as neutrals and as belligerents.
We are further told that “with regard to the revision of the laws of war from the humanitarian point of view, all nations and all members of each delegation were agreed that it was desirable that the laws of war should be such as to prevent suffering of persons or destruction of private property, except such as was inevitable for the accomplishment of the war objective. Every now and then in the course of the discussion, someone would raise anew the humanitarian point and immediately there would be an echo from the representatives of every other national delegation that his country was behind no other in its desire to limit the horrors of war. But although the public at large in time of peace and in a state of emotional rest sees only the disturbances of war, governments, more foreseeing, know that wars must occur.
Subsequently they are unwilling to permit public opinion of their respective nations in time of peace to drive them to agree to arrangements by international conventions which the same public under the influence of war emotions would be the first to urge their governments to break. Thus, the codes as agreed upon will scarcely satisfy the most radical pacifists and humanitarians.”
“. . . From the other three points of view there was cleavage of opinion in the Commission. In the formulation of the rules of war for these new agencies, each nation seemed chiefly guided by the principle of promoting its own national policies and its position in the world, neglecting neither the point of neutral nor of belligerent. Each national delegation was a unit in standing for a code which should favour its national situation But there was another line of cleavage more or less visible, running between the jurists forming the Commission as a whole and the technical advisers as a whole. The majority of the commissioners had little or no technical acquaintance with the art and practice of war. Some seemed inclined to believe that the course of war even when great national emotions were aroused, might be guided by the phrases of a code of rules previously agreed upon. They did not appear always to realize that at any time the code of accepted rules of warfare is based almost entirely on past experience and that when a new war arises, new social, economic and belligerent conditions will make the existing code more or less unsuitable to meet the exigencies of the situation as developed in the course of the current war.”
The Commission, in suggesting the rules of bombardment, took this into account. It said, “On the other hand, it is equally clear that the aircraft is a potent engine of war and no state which realizes the possibility that it may itself be attacked, and the use to which its adversary may put his air forces can take the risk of fettering its own liberty of action to an extent which would restrict it from attacking its enemy where that adversary may legitimately be attacked with effect."
The Commission, therefore, considered it useless to enact prohibitions unless there was an equally clear understanding of what constituted legitimate objects of attack. It is precisely in this respect that agreement was difficult to reach.
It is needless to say that during this war even the victor allied powers did not follow these rules of bombardment. Leaving aside the case of bombardment by atom bomb, even in using the ordinary bombs, the suggested rules of bombardment were not at all heeded. I shall not repeat here what is said in justification of the use of the atom bomb.
It has been rightly pointed out by Mr. Ellery C. Stowell of the editorial board of the American Journal of International Law that the atom bomb has come “ to force a more fundamental searching of the nature of warfare and the legitimate means for the pursuit of military objectives”. He then says, “in view of the frightful efficiency of the bomb and the consequent indiscriminate destruction of civilian life and property, it has aroused a considerable popular opposition. At the same time our military and governmental authorities have given it their support on the ground that it hastens the defeat of the enemy with a consequent saving of lives of allied soldiers. . . . When the pros and cons are summed up and all the arguments are heard, it will be found that, pending a more perfect world organization and union shown to be capable of preventing wars, the laws of war cannot rule out any means effective to secure the ends of war.
If Great Britain, Canada and the United States can expect to keep the technique of the atom bomb secret, it would hardly be reasonable to expect them to forego this advantage any more than it would be to expect them to make public any other plan of military defense and the military advantage derived from superior research or administrative organization.”
In this state of the aerial warfare, it is difficult to consider the conduct of the Japanese authorities in making the regulation for the purpose of trial of the air pilots criminal on the ground that the regulation gave ex post facto law. In my opinion, they did not commit any crime in making these regulations.
We should not fail to remember that the real horror of the air warfare is not the possibility of a few airmen being captured and ruthlessly killed, but the havoc which can be wrought by the indiscriminate launching of bombs and projectiles. The conscience of mankind revolts not so much against the punishment meted out to the ruthless bomber as against his ruthless form of bombing.
As regards the trial according to these regulations, I do not think anything has been established which would fix any guilt on any of the accused. Even if we judge by the standard given by the rules suggested by the Commission, there were bombardments in complete disregard of them. At any rate, if the court-martial found that to be the fact and accordingly convicted the airmen of war crimes, I would not say that either the commander-in-chief or the members of the Cabinet or of the General Staff committed any crime in not opposing that conviction.
As regards execution without trial, we may once again refer to exhibits 1, 991 to 1, 993 wherein the authorities concerned expressly and clearly emphasized trial by court-martial, and certainly they cannot be said to have ever ordered, authorized or permitted any of these illegal things.
The alleged cases of execution of airmen without trial are noticed below with the evidence on which they are based. I would, at the very outset, observe that the Prosecution evidence in support of this part of the case is mostly worthless. We have been given extracts from what is named as JAG Report, and have been told that it is the report prepared by a ‘judge Advocate General *. A Judge Advocate General is no doubt a responsible personage of high position. But in the absence of the materials on which it might be based, I am not prepared to accept it only on his authority. If his conclusions are really based on any relevant materials, we are entitled to have those materials and to see for ourselves whether we too can come to the same conclusion. Minds of different men may differ upon the result of the evidence
thus leading to different decisions even on the same cause. We are, however, here on a cause different from that before the Judge Advocate General. In so far as his conclusions might have been based on no evidence or on irrelevant evidence, these are worthless and must be rejected.
Another group of evidence relied on by the prosecution in connection with this matter is what is described as “Research Report about the Japanese Violations of the Laws of War”. I am not prepared to pay any greater respect to the conclusion of this reporter whoever he be. The report may evince a very high worth as a piece of research. But in a case where the life and liberty of so many persons are involved, I am not prepared to be led by any sense of respect due to any research work.
The majority of the evidence is the statement of persons of unknown reliability taken out of court without any guarantee of trustworthiness. Both the ability and willingness of these persons to declare the truth remain untested.
1. Bougainville: Exh.l, 875, R.P. 14, 131 and 1, 877, R.P. 14, 133.
Exh. 1, 875 is a record of the interrogation of Captain WATANABE, Kaoru, and Major ITO, Taichi, both of 17th Army Military Police Unit. This interrogation was made out of court obviously for use at the trial of these two men.
In the course of the interrogation it was admitted that two American airmen who had come down in the sea between Taiof Island and Porton in Bougainville were beheaded on orders of the M. P. Headquarters, 17th Army. This happened in December 1943.
Exh. 1, 877 is a statement taken out of court of a Chinese, Cher Chee by name, who says that he was captured by the Japanese at Hongkong in December 1941. His statement runs thus: "In May 1943, near Buin I saw a white man dressed in overalls like a pilot would wear. He was a young man. The Japanese tied his hands behind his back, and made him sit on the ground. They put a drum of boiling water beside him. About nine of them then filed past him and each one emptied a tin of boiling water over him. The man screamed with pain. I saw him fall flat on the ground and lie still and he stopped screaming. He appeared to me to be dead. The Japanese were soldiers, not officers. The white man was tall, of medium build, clean-shaven and fair. The overalls were khaki. I was the only Chinese who witnessed this." This statement was also taken for use at the trial of the minor war criminals.
2. New Britain: Exh. 1, 866, R.P. 14, 123 and Exh. 1, 873, R. P. 14, 129.
Exh. 1, 866 is a statement taken out of court of a Captain JohnJ. Murphy of Allied Intelligence Bureau. The statement runs thus: "Norman Vickers of the Royal New Zealand Air Force, was with us as a prisoner of war off Tunnel Hill Road, Rabaul. He stated that he was shot down in the Bougainville-Shortlands Area I believe. When he arrived at the prison camp in Rabaul he had been cruelly ill-treated. He had been bound by ropes to which fish hooks had been attached in such a way that whenever he moved his head the fish hooks would pierce his face. Vickers’ health deteriorated and in July 1944, he died in my presence as a result of malnutrition and dysentery."
Exh. 1, 873 is a statement taken out of court of one Havil- dar Changiram of the Indian Army. The statement stands thus: "On the 12th of November 1944 I was digging a trench for Japanese trucks in Totabil Area. About 16:00 hours one single engined United States fighter plane made a forced landing about 100 yards away from where I was working. The Japanese belonging to Go Butai Kendebo Camp rushed to the spot and got hold of the pilot, aged about 19 years, who had come out of machine himself before the Japanese reached him. General INAMORA also lived there in the Japanese Army Headquarters. About half an hour from the time of forced landing, Japanese Military Police, Kem- peitai, beheaded the Allied pilot. I saw this from behind a tree and noticed Japanese cut his flesh from arms, legs, chest and hips and carried the same to their quarters. I was shocked at the scene and followed the Japanese just to find out what they do to the flesh. They cut the flesh to the small pieces and fried it. About 18:00 hours a Japanese high official (Major-General) addressed about 150 Japanese, mostly officers. At the conclusion of the speech a piece of the fried flesh was given to all present, who ate it on the spot.”
3. New Guinea: Exh.l, 836-B, R. P. 14, 075; Exh. 1, 846, R.P. 14, 096.
Exh. 1, 836-B is an excerpt from a captured diary and the record of a statement made by a Japanese prisoner. The statement gives an account how on 29 March 1943 one of the two members of the crew of the Douglas, which had been shot down by A/A on the 18th, was beheaded by unit commander KOMAI. We were not given the captured diary. The owner and unit of the author of the diary is unknown. I hope it was written in Japanese.
Exh. 1, 846 is a record of the interrogation of Japanese Captain ONO, Satoru, of 53rd Field Anti-Aircraft Artillery Battalion, 36th Division, Second Army. ONO, Satoru states that he applied to Yoshino unit commander for an American prisoner of war to kill. He was given two. He had them bayonetted with a shovel. This was in 1944. He did it because he had a strong hostile feeling on account of Americans’ bombing his battery.
4. Ambon: Exh.. 1, 830, R.P. 14, 063; Exh. 1, 831, R. P. 14, 071.
Exh. 1, 831 is the record of interrogation of Warrant Officer YOSHIZAKI of the Japanese Navy. According to this statement on the 29th August 1944, the deponent took part in the beheading of three American airmen at Sarara Prisoner of War camp. This was done on orders of superior officers. The district had been bombed by American planes on the previous day.
Exh. 1, 830 is a statement out of court of a Lt. Paul Alfred Stansbury of the U. S. Army Air Force. The affiant, we are told, “was a bombardier on a B-24 which crashed over Kai Islands on 21 September 1943”. The statement runs thus:
“The crew had sustained serious injuries in the crash and the navigator was pinned down on the flight deck. A Japanese boat came out. The airmen with the exception of the navigator were taken prisoners. The Japanese refused to do anything for the navigator but left him there to die. The rest of the airmen were taken to Ambon. They were placed in mosquito infested cells without blankets, bedding or mosquito nets. No sunlight could penetrate the cells and there was no ventilation. They were starved on weevily rice. No medical attention was given them. For 68 days they were interrogated to the accompaniment of beatings almost daily. Later the deponent and the co-pilot were shipped to Japan. They were frequently beaten by the guards. They both became paralyzed with beri-beri but received no treatment for this during the 60 days sea voyage. The deponent remained paralyzed for nine months and the co-pilot for 20 months.”
5. Celebes: Exhs. 1, 798 to 1, 803, R. P.13, 846-65; Exh. 1, 810, R.P. 13, 920.
Exh. 1, 798 relates to two airmen captured on 3rd September 1944.
Exh. 1, 799 relates to 8 airmen survivor of a plane crash in the latter part of September 1944.
Exh. 1, 800 relates to 9 airmen in October 1944, one in January 1945 and two in February 1945.
Exh. 1, 801 relates to an incident of July 1945.
Exh. 1, 802 and 1, 803 relate to an execution of four airmen on 23 March 1945.
These are all interrogatories of minor war criminals taken at the Prisoners of War Camp, Celebes.
Exh. 1, 810 is “evidence taken in Brisbane on November 5, 1945, by Mr. Justice Mansfield”. The relevant statement is: “Allied airmen caught were killed. I heard that all Allied airmen shot down or landed in Menado were all killed. The Tokki Tai were said to have killed them, When I worked at the Tokki Tai building I saw three airmen—Americans, I believe. We saw them in the gaol, about June or July 1945; and I think they were executed in Tondano. Mr. Stelma was put in a gaol and bamboo splinters were put under his nails. The Tokki Tai did this—YAMAGUCHI was the head of them.”
6. Batavia; R.P. 13, 601.
The evidence relied on is the testimony of the Ringer. The witness says; “The Chief of the Japanese coolies reported to us that from the air raid of January 25th two airmen had bailed out of an aircraft over the landing strip. One, who landed on the strip, was promptly beheaded; the second man was hung up in a tree and was bayonetted. Again on the raid of the 29 th of January 1945, a burning aircraft tried to make a forced landing on the strip. Two airmen got out of the plane but were thrown back into flames by the Japanese. After the surrender—we had seen on these two air raids seven airmen who had been exhibited in the city of Palembang blindfolded—we asked the Kempei Tai what had happened to these seven men. They denied all knowledge. However, we searched the Kempei Tai building and we found their names written on the cell wall. They then admitted that these men had been sent to Singapore. These men were executed in Singapore in June 1945. The Japanese responsible made full confessions and committed suicide. The case was known as 'Operation Meridian'.”
7. Borneo: Exh. 1, 690, R. P.13, 500.
Exhibit 1, 690 purports to be a statement by the Japanese Warrant Officer TSUDA. It states that at Samarinda, East Borneo, in February 1945, three American airmen were beheaded.
8. Burma; Exh. 1, 574, R.P. 12, 976.
Exhibit 1, 574 is a statement taken out of court of an Anglo- Burman Robert Andrew Nicol. He gave the date of the occurrence as “7th either February or March 45, I can’ t remember— which”. The name of the airman was given by this man as ‘ Stan Woodbridge of Chingford, Essex, England’. We do not even know whether there was really any such airman in the R. A. F. and whether he is really dead. The witness according to his own statement was merely a chance witness. He stated: “Prior to the occupation of Rangoon by the Japanese forces, I was a permanent resident at Rangoon but with the approaching advent of the Japanese, I evacuated from Rangoon on 20th February 1941 and I remained at Myaungmya till 25th May 1945. On Wednesday, 7th either February or March 45, I can’t remember which, at about 10: 00 hours a lorry stopped in front of my house in Myaungmya, and BA HLAING, a young Burman accompanied by a Jap soldier (three stars), came to my house and enquired if I could speak English and Burmese fluently. When I told them I could, I was asked to accompany them." We are not told why the party arranged the scene in that forest. Obviously the airmen could not be questioned earlier for want of a competent interpreter.
9. Hankow: Exh. 1, 891, R.P. 14, 162- Exh. 1, 891 is part 12 of the report of the Central Investigation Committee relating to Prisoners of War, dated 4 November 1945. It describes the killing of three American airmen at Hankow, China, in December 1944. The report states:
“4 November 1945. Major General KABURAGI
“I. Circumstances of the incident.
“ 1. Since around Autumn of last year, the indiscriminate shooting and bombing of the city of Hankow caused considerable damage to the homes of the citizens. Not only that, but the casualties inflicted upon the people, chiefly upon the Chinese forces, was great, and the indignation of the citizens gradually increased.
“2. The Hankow Youth Organization (?) forced the American fliers who participated in attacks against Hankow, to march through the city, as a reprisal for the above-mentioned indiscriminate bombing and shooting. The citizens carried out beatings and violence against these fliers.
“I do not have a detailed knowledge of the methods, means, and degree of the atrocity.
“3. Before the above-mentioned incident was carried out, application for permission to do so was made to the 34th Army Headquarters by the Hankow Youth Organization (?) . However, the Commander of the Army (Lieutenant General SANO) would not give permission at first, because the ill-treatment of prisoners of war is not only a violation of International Law, but would also have a bad influence upon the treatment of Japanese nationals interned in the United States. However, the Youth Organization repeatedly requested the permission for carrying it out, saying that the plan was a reprisal for the indiscriminate shooting and bombings and that it would be carried out under the responsibility of the Chinese people and that they will absolutely refrain from troubling the Japanese Forces. Consequently, the permission for the aforementioned was granted.
10. The Philippines at Cebu: Exh. 1, 461, R.P. 12, 778.
Exh. 1, 461 is described by the prosecution as “a summary of evidence of JAG Report No. 72 on the murder of two American captured fliers at Cebu city in March 1945”. The execution is said to have taken place on 26 March 1945.
11. Singapore: Exh.l, 514, R.P. 12, 927.
Exh. 1, 514 is the statement taken out of court of Lt. Alexander Gordon WEYNTON of Australia. The relevant portion of the statement stands thus:
“On 8th March 1944, I was shipped from Kuching to Singapore to serve a sentence of 10 years imprisonment imposed on me by a Japanese Court on 29th February 1944. Nineteen other prisoners who had been sentenced to imprisonment by the same court accompanied me.
“On 11th March 1944, we were taken to Outram Road Gaol. . . .
“In December 1944, or January 1945, a B-29 which had been shot down in raids over Singapore caught fire. Two members of the crew were severely burnt. They were brought in to Outram Road Gaol. They were just one mass of burns and were black from head to foot. They were placed in a cell but were not allowed any medical treatment.
“In June 1945, I saw a party of nine Allied airmen taken out from their cells on a Saturday afternoon. They were accompanied by a heavily armed guard and a Japanese burial party. Some of this party were Japanese good conduct prisoners. Several days later some of them told me that nine airmen had had their heads taken off and that they had helped to bury them.
“In all between May and July 1945, I saw 17 Allied airmen and 15 Chinese civilians taken out in similar circumstances for execution. The burial party returned but the prisoners did not. The burial party were in a dirty condition, as though they had been digging when they returned. I had some contact with the airmen as I was engaged in taking latrine cans to and from their cells. They told me that they had not been tried.
“I was released when the Japanese surrendered in August 1945.”
It is difficult to guess why there was any talk about the trial at all.
12. Japan Proper: Exhs. 1, 921 to 1, 924, R. P. 14, 204-18.
These exhibits are the different parts of the Report of the Japanese Central Investigation Committee relating to the Prisoners of War, dated 9 January 1946.
Exhibit 1, 921 is part 23 of this Report. The Report states: “The treatment of the airmen of the Allied Forces captured in Eastern Region were divided into two categories. First, if they were suspected of violating military regulations, they were disposed of by court-martial. Second, if they were acquitted, they were interned in the POW camps and treated as ordinary POW. However, before these steps were taken they at first were detained in the guardhouse of the Eastern Military Police Unit Headquarters as suspected violators of military regulations During the period of detention there were 17 deaths."
The following incidents are also recorded in this Report:
“l. On the night of May 25, 1945, 62 Allied airmen who were interned in the detention house of the Tokyo Army Prison as suspected violators of the military regulations were burned to death in the air raids.
“2 A seriously injured pilot of a B-29 which fell in Hiyoshi Village in Chiba Prefecture received Kaishaku, that is, he was beheaded on May 26, 1945, on the orders of the Japanese captain of the patrol. The report adds that there is an indication that bayonetting of the body took place after death.
“3. From February 11, 1945, when the Tokai (T. N. Eastern Sea) Military District was established until the time of truce, the number of surviving airmen of Allied planes who descended within the District was 44. Of these, six men at the beginning were interned as prisoners of war since it was clear that they had attacked military objects; and the eleven men who later descended on May 14th were sent to courts-martial because they had conducted indiscriminate bombings and were deeply suspected of being major war criminals; 27 men who later descended after the latter part of May, were disposed of by military regulations without formal procedures of the courts-martial due to the situation at that time. It was decided that these men were clearly guilty of inhuman and indiscriminate bombings.
“4. Around May of this year, the Headquarters of the 13th Area Army (operational army formed in conjunction with the Headquarters of the Tokai Military District, with most of the personnel holding concurrent positions in the Headquarters of the Military District) estimated that the time of the landing on the mainland by the Allied Forces would be around August. At that time, the whole Army was concentrating on the preparations for the operation, and the work of the Headquarters was also extremely busy. By chance the headquarters received 11 men, airmen who participated in the indiscriminate bombing of Nagoya on May 14th, and discussions were going on about courts-martial for them. However, accompanying the air raids which were getting more violent, the situation was such that the number of airmen was increasing further. After the latter part of May, the enemy bombings seemed to have shifted to inhuman and indiscriminate bombing of cities, aiming mainly at destroying private houses with incendiary bombs, and killing and wounding of citizens. This was also clearly perceived through investigation of these airmen.
“With the passing of time, the operational work became busier than ever. Various situations had to be taken care of speedily, and despite the thorough efforts of the officials and the people, the damages caused by the indiscriminate bombings became gigantic, and the hostile feelings were reaching the limit. Meanwhile, under the severe and continuous air raids day after day, the administration of these airmen was very difficult. In other words, the area army decided that under the circumstances, sending these men to courtsmartial, which are complicated and delaying, would not be consistent with the prevailing state of affairs. Consequently, 11 men were executed in the mountains of Miyazu, Akazu-Cho, Seto City on June 28 th, and 16 men were executed at the rear of No. 2 office building of the Headquarters on July 14th.”
Exhibit 1, 922 is part 24 of the Report and is dated 26 December 1945. The Report states:
“Total number of the Allied Force Flight Personnel who were captured within the Central Military District by the Japanese Army was about forty- nine, of whom three were sent to Tokyo; about six died from injuries and sickness; two were put to death after trial by court-martial; and the rest, of about thirty-eight, were put to death without being court-martialed.
“The intensification of air raids from June, 1945 onwards, brought about a gradual increase also in the number of captured air flight personnel, but although the Central District M, P. Unit, following thorough investigations on the strength of the aforementioned orders, secured evidence of viola
tion of Martial Law in each of these cases, these flight personnel could not be brought before Court-Martial due to the 15th Area Army Headquarters (an operational unit incorporated into one body with the Central Military District Headquarters, and the greater part of whose personnel were holding additional posts with the Military District Headquarters) being too busily occupied in the preparation of defense operations against the intensified air raids and supposed landing of our mainland by the U. S. forces, and on account of the Judicial Department, too, being kept busy in dealing with cases of violation of military discipline.
“At that time, the Central Military District Army opined that the intensification of air raids since the autumn of the year before—especially the fact that many lives and considerable private property had been destroyed as a result of the indiscriminate incendiary bombings on Tokyo, Nagoya, Osaka and Kobe, etc., since March of this year, had roused the indignation of the nation—especially towards the flight personnel—to an exceedingly high pitch.
“As, under the afore-mentioned circumstances, the Central District M. P. Unit received no instructions from the Central Military District Headquarters, regarding the measures to be taken against the flight personnel, they contacted the Tokyo M. P. Headquarters, and on the occasion of the first execution in the beginning of July, same was carried out by also contacting the Military District Headquarters."
Exhibit 1, 923 is part 27 of the Report and is dated 27 March 1946. The Report states:
“B. In regard to the public feeling against the captured airmen.
“After the bombings of the Japanese Mainland were initiated, not only were fearful air raids against important facilities continued, but in various places the losses in lives and properties of non-combatants started to mount. Accompanying this, the hostile feelings of the people began to increase. However, in March when large cities such as Tokyo, Nagoya, Osaka and Kobe began to suffer indiscriminate incendiary bombing raids, and huge losses were suffered, the people’s feelings suddenly became violent and their hostile feelings increasd. The general pubilc opinion against the captured airmen hardened conspicuously. Later on, the indiscriminate bombings by Allied aircraft became increasingly and ceaselessly violent and the people’s spirit of vengeance reached its limit. The situation came to the point where even Japanese airmen who parachuted down were in danger of harm, because the people did not take time to make distinctions.
“C. Relationship between the Central District Military Police Unit Headquarters and the Military Police Headquarters in regard to punishments.
“ 1. Accompanying the sharp increase in air raids against the mainland in the spring and summer of 1945, the number of captured airmen increased considerably. However, for various reasons, every unit was unable to speedily bring these men to courts-martial. Because of this, the Military Police Unit in the various areas had difficulties in the internment of these men on account of the poor and crowded internment facilities. Around June of 1945, Lieutenant General OKIDO, Sanji, the Military Police Commandant, after considering the general state of affairs, issued a personal message using the name of Colonel YAMAMURA, Yoshio, Chief of the External Affairs Section of the Military Police Headquarters. The message was issued to each Military Police Headquarters Commandant in the Northern, Northeastern, Eastern, Tokai, Central, Chugoku, Shikoku, and the Western District in regard to the handling of captured airmen.
“2. The gist of the said personal message, according to the memories of those who were then connected with the Military Police Headquarters, is generally as follows:
“Courts-martial for captured airmen are generally at a standstill. Because of this, it seems that the interned personnel have increased and the various Military Police Units are feeling extreme difficulties in the handling of these men. From the standpoint of the Military Police, they hope for the acceleration of the courts-martial. There are probably some men among the prisoners who carried out inhuman and indiscriminate bombings. It is only right that these men be immediately punished severely according to military regulations.
“If it is impossible to make immediate dispositions by courts-martial, perhaps other methods may unavoidably be used. However, it is up to the Military District Headquarters to decide which of the two methods should be adopted, and it is not a matter to be handled by the Military Police. Therefore, it is best to make contacts with the Chief of Staff of the Military District concerned, according to necessity. Moreover, it seems that he added that this case should first have the independent decision of the Chief of Staff of each Military District.
“3. According to Major-General NAGATOMO, Tsuguo, Commandant of the Military Police Unit Headquarters of the Central District, he was trying to find a solution to the difficulties of the internment of the increased number of captured airmen. Since he received the aforementioned personal message at this time, it seems that he interpreted the intention of the message to mean immediate punishment of the captured airmen and he ordered his officers to make preparations accordingly.
“D. Relationship between the Military Police Unit Headquarters of the Central District and the Central Military District Headquarters in regard to punishments.
“l. Around the end of June (or the beginning of July), Major-General NAGATOMO, Commandant of the Military Police Unit of the Central District who received the said message, paid a visit to Lieutenant General KUNITAKE, Michio, the Chief of Staff of the Central Military District. NAGATOMO made the following statement; ‘As a result of investigating captured airmen, we find that their statements are generally all alike. Therefore, hereafter we will not submit every bit of information and we wish to take the appropriate measures for these airmen.’
“ Lieutenant General KUNITAKE did not think that this negotiation was something in connection with anything as important as the punishment of the airmen, but he thought it was just a simple intelligence report. Therefore, he answered, ‘ I acknowledge it’, and turned his attention to extremely pressing problems of operation preparations, and counter-measures against air raids.
“According to Lieutenant General KUNTTAKF., it seems that he never even dreamed that the purpose of Major-General NAGATOMO's visit was the contact for the important matter based upon the personal message from the Military Police Unit Headquarters.
“2. In the early part of June (the exact date is not known) Major SHI- NAI, Ikomaro, of the Military Police Unit Headquarters of the Central District visited Colonel OBA, Kojiro, a Staff Officer of the Central Military District and said,'Since we have had contact from the Military Police Headquarters, we will punish the captured airmen who are at present interned at the Military Police Unit of the Central District'.
“Thereupon, Colonel OBA asked, ‘is it proved that all of these captured airmen actually carried out indiscriminate bombings? It seems that Major SHINAI answered, ‘Yes’.
“It appears that Colonel OBA thought that these punishments were matters concerning captured airmen who were under the administration of the Military Police Unit of the Central District and based upon the plans of the higher Military Police Headquarters to which the unit belonged. Therefore it seems that he answered, ‘ It is inevitable, if they are to be punished by the Military Police Unit’, thinking it was unavoidable, since they were to be punished in the light of military regulations."
Exhibit 1, 924 is part 25 of the Report and is dated 23 January 1946.
The Report states: “Of the Allied Air Force Flight Personnel captured by the Japanese Army within the Western Military District, about eight were put to death on the 20th of June, 1945 (Group l), another, approximately eight men, on the 12th of August in the same year (Group II), and another, approximately fifteen men, on the 15th of the same month in the same year (Group III), by personnel of the said Military District Headquarters."
The report further states in paragraphs 3, 4, and 5, commencing on page 1 as follows:
“III.. RE-EXECUTION OF GROUP I.
“As a result of various cities in the Mainland having suffered one after another from incendiary bombing by the Allied Forces ever since the end of 1944, the hostile feeling of the military and government authorities, as well as the people, became steadily aggravated, especially upon Fukuoka City, the seat of the Military District Headquarters, being air-raided on the 19th of June, 1945, which resulted in the principal parts of the City being reduced to ashes, and presenting the tragic sight of large numbers of the general populace being made victims, whereupon the hostile feeling appears to have be come still further intensified.
“It was under the circumstances as per the foregoing paragraph that about eight of the captured Flight Personnel were executed by personnel of the Military District Headquarters within its compound on the 20th of June.
“IV. RE-EXECUTION OF GROUP II.
“On entering into August, successive atomic bomb raids were made by the U. S. Army on the cities of Hiroshima and Nagasaki, victimizing the majority of the citizens of both cities, and upon it becoming known that the miserable plight of the said victims was absolutely beyond words, the general feeling of animosity appears to have soared up to its zenith again.
“It was under the circumstances as per the foregoing paragraph that about eight captured Flight Personnel were executed by personnel of the Military District Headquarters in a hill near the Aburayama Crematorium in the southwest part of Fukuoka City, on the 12th of August.
“V. RE-EXECUTION OF GROUP III.
“Upon the war coming to an end on August 15th, various wild rumours became circulated throughout Kyushu District, and Fukuoka District especially was thrown into an indescribable state of confusion due to the weaker sex fleeing to places of refuge, etc. , due to the fabricated report that a part of the Allied Forces had already landed, etc. , and these factors appear to have aroused a sense of intense enmity among a section of the officers of the Military District Headquarters.
“It was under the circumstances as per the foregoing paragraph that about fifteen captured Flight Personnel were executed by personnel of the Military District Headquarters in a hill near the Aburayama Crematorium in the southwestern part of Fukuoka City, on the 15th of August.”
I have already indicated my difficulty in accepting the account in its entirety . But even if I could accept it, it would not establish any guilt of any of the present accused.
The cases of execution without trial are really all stray cases at different theatres of war far away from Japan.
In Japan proper there are several cases, all occurring in 1945 when everything was in a chaotic condition here.
The only accused who would be concerned with these incidents in Japan at that time would be KOISO, SHIGEMITSU and TOGO. We must remember that the TOJO Cabinet fell by the 22nd July 1944. Between 22nd July 1944 and 7th April 1945 it was the KOISO Cabinet which was functioning, and of the accused, only KOISO and SHIGEMITSU were there. From the 7th April 1945 till the 17th August 1945 the SUZUKI Cabinet functioned, and only TOGO of the accused persons was in that Cabinet.
In any case, in view of the conditions of Japan at that time, I would not hold them criminally responsible for failing to prevent these unfortunate executions. Every failure does not imply fault.
For the reasons given in the foregoing pages, I would hold that each and everyone of the accused must be found not guilty of each and every one of the charges in the indictment and should be acquitted of all those charges.
I have not considered whether or not any of the wars against any of the nations covered by the indictment was aggressive. The view of law that I take as to the criminality or otherwise of any war makes it unnecessary for me to enter into this question. Further, I have indicated the difficulty that I feel in defining aggressive war ’, keeping in view the generally prevalent behaviour of the powers in international life.
There is indeed one possible approach to the case, which I have, as yet, left unexplored. It is said that the victor nations, as military occupants of Japan, can take action under Article 43 of the Hague Convention IV of 1907 in order to 'ensure public order and safety’ and that this power entitles them to define the circumstances in which they would proceed to take such action and the action which they would consider requisite for the purpose.
Reference is made to the case of Napoleon Bonaparte and thence to Article 43 of the Hague Convention of 1907, and it is contended that the victor powers would have every right, for the sake of ensuring public order and safety of the world, to remove any of the accused from any sphere of life where there would be any possibility of his doing any future mischief.
I believe this is really an appeal to the political power of the victor nations with a pretense of legal justice. It only amounts to “piecing up want of legality with matter of convenience”.
I have already noticed the case of Napoleon Bonaparte and have pointed out how, even in those days, a good deal of difficulty was felt and doubts entertained as to the exact legal position arising in his case. Those who took the final step of detention of Napoleon realized that it was necessary for them to equip themselves with some authority for this purpose from their national legislature. 56 George III chapters 22 and 23 were enacted to furnish this authority.
At the Congress of Aix-la-Chapelle 1818, the Allied Powers, in their measures against Napoleon, proceeded on the assumption that the case was not covered by international law, and they gave their reasons for saying so. I do not see what productive principle we can derive from his case for the purposes of international law. The case only yields a particular rule having a very narrow sphere of attraction and, in my opinion, a strictly limited field of projection. We may no doubt sometimes apply even such a rule beyond the field covered by its original logical content. But such a projection must not be allowed to take it to a field essentially and fundamentally different from its field of origin. I do not know the position of the Hitler group, Perhaps it might have been possible to liken their case to the case of Napoleon.
The Allied Powers thought that they were justified by the law of nations in using force to prevent Bonaparte from usurping the governorship of France, and that with this justification they made war UPON HIM AND HIS ADHERENTS as ENEMIES TO THE ALLIES when FRANCE WAS NO ENEMY to them.
Bonaparte was designated as merely “the chief of a shapeless force WITHOUT RECOGNIZED POLITICAL CHARACTER”, and, consequently, without any right to claim the advantages and the courtesies due to public power by civilized nations. That might have been the position of the Hitler group also, if that group stifled altogether the German constitutional life, and usurped power in the manner in which, and, to the extent to which, it is brought out in evidence in that case. In either case perhaps, the so-called state, if it could be called a state at all, succeeded in withdrawing from the influence of the social tendency and placing itself consciously into opposition to the society concerned.
The case of the accused before vs cannot in any way be likened to the case either of Napoleon or of Hitler. The constitution of Japan was fully working. The Sovereign, the Army and the civil officials, all remained connected as usual and in normal ways with the society. The constitution of the State remained fashioned as before in relation to the will of the society. The public opinion was in full vigour. The society was not in the least deprived of any of its means to make its will effective. These accused came into power constitutionally and only to work the machinery provided by the constitution. They remained all along amenable to public opinion, and even during war the public opinion truly and vigorously functioned. The war that took place in the Pacific was certainly war with Japan. THESE PERSONS DID NOT USURP ANY POWER, AND CERTAINLY THEY WERE ONLY WORKING THE MACHINERY OF THE INTERNATIONALLY RECOGNIZED STATE OF JAPAN AS PARTS OF THE JAPANESE FORCE WHICH WAS AT WAR WITH THE ALLIED POWERS.
An appeal to Article 43 of the Hague Convention IV of 1907 may indeed look like seeking a pretext for the trial of these persons. We are told that the starting point for a discussion of the punishment of war criminals must be the Hague Convention IV of 18 October 1907. This convention, it is said, is essentially the handiwork of modern European scholarship and as such essentially reflects the tradition of modern Roman law and of modern Romanist codification. We are then told that it will be distorted or misunderstood, if it is conceived of exclusively in accordance with Anglo-American conceptions of legal or juridical method, and if it is conceived of without recognizing modern juristic theories concerning THE ROLE OF PURPOSE in law. It will be ineffectual and distorted if it is not interpreted and administered in accordance with Romanist conceptions relating to juridical method, as well as in accordance with the purposes or goals stated in the very text of the convention itself.
The purposes or goals said to be “stated in the very text of the Convention itself" are referred to in order to bring within Article 43 the right and power of the victors to make law declaring aggressive war a crime and a crime for individuals. I believe “the purposes and goals” of the convention would not take us to the determination of the character of the war itself. The whole purpose was to give the laws and customs of war, assuming the pre-existence of the war condition.
The Covenanting Powers, “Seeing that, while seeking means to preserve peace and prevent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms HAS BEEN BROUGHT about by events which their care was unable to avert;
“Animated by the desire to serve, even IN THIS EXTREME CASE, the interests of humanity and the ever progressive needs of civilization;
“Thinking it important, WITH THIS OBJECT, to revise the general laws and customs OF war, either with a view to defining them with greater precision or to confining them with such limits as would mitigate their severity as far as possible;
“Have deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.”
While so doing, they gave certain rules relating to “military authority over the territory of the hostile state” in Section III of the Annex to the Covenant, and Article 43 found a place in that section. The Article stands thus; “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”
Its provisions would apply when a territory is occupied during belligerency by a hostile army. If the construction sought to be put on Article 43 be correct, then an army, in such occupation of a territory during war would be entitled to declare the war, conducted by the government of that territory as aggressive and criminal, and, if it succeeds in getting hold of any personnel of that government, would be competent to create a charter defining law for the trial of that personnel and get them tried and convicted. I shall not, for a moment think that that was “the purpose and goal” of the Powers who covenanted themselves into the Hague Convention of 1907.
I am not prepared to strain and twist Article 43 of the Hague Convention to cull any such purpose and goal out of it. I am not also prepared to project the Napoleon case to the present. I have already pointed out, how even after this war, the charter of the United Nations, which was promulgated by the peoples of the United Nations avowedly “to save succeeding generations from the scourge of war” and expressly announced “the purposes of the United Nations” to be “ to maintain international peace and security and to that end : to take corrective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace ....”, did not introduce any such measure against the individual members of any offending state.
Chapter VII of that Charter provides for “action with respect to threats to the peace, breaches of the peace, and acts of aggression”. The provisions of this chapter do not contemplate any steps against individuals. It may safely be asserted that the coercive actions envisaged by chapter VII would not be
invoked individually against those who might be responsible for the functioning of the offending collective entity.
As a judicial tribunal, we cannot behave in any manner which may justify the feeling that the setting up of the tribunal was only for the attainment of an objective which was essentially political though cloaked by a juridical appearance .
It has been said that A VICTOR CAN DISPENSE TO THE VANQUISHED EVERYTHING FROM MERCY TO VINDICTIVENESS; BUT THE ONE THING THE VICTOR CANNOT GIVE TO THE VANQUISHED IS JUSTICE. At least, if a tribunal be rooted in politics as opposed to law, no matter what its form and pretenses, the apprehension thus expressed would be real, unless “ JUSTICE IS REALLY NOTHING ELSE THAN THE INTEREST OF THE STRONGER”.
Had we been openly called upon to decide such political issues, the entire proceedings would have assumed a different appearance altogether and the scope of our enquiry would have been much wider than what we allowed it to assume. The past conduct of the persons under trial in such a case would have simply furnished some evidentiary facts; the real ultimate probandum would have been the future threat to the ‘public order and safety’ of the world. There is absolutely no material before us to judge of any such future menace.
The parties were never called upon to adduce any evidence in this respect. The matter would certainly involve extensive investigation of facts perhaps hitherto undisclosed to the world. When the Nazi aggressors are all eliminated and the Japanese conspirators are well secure in prison, we are still authoritatively told that “never before in history has the world situation been more threatening to our ideals and interests”.
So, it may be that the world’s attention has not yet been directed in the right direction. “The depressing aspect of the situation”, the world is told, “is the duplication of the high-handed, calculated procedure of the Nazi regime”. This may be so; or it may also be that we are only being betrayed by what is false within, — the incipient failure of will and wisdom.
It is indeed a common experience that, in times of trial and stress like those the international world is now passing through, it is easy enough to mislead the people’s mind by pointing to false causes as the fountains of all ills and thus persuading it to attribute all the ills to such causes. For those who want thus to control the popular mind, these are the opportune times; no other moment is more propitious for whispering into the popular ear the means of revenge while giving it the outward shape of the only solution demanded by the nature of the evils. A judicial tribunal, at any rate, should not contribute to such a delusion.
The name of Justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation. The world is really in need of generous magnanimity and understanding charity. The real question arising in a genuinely anxious mind is, “can mankind grow up quickly enough to win the race between civilization and disaster?”
It is very true that “we must change our accustomed way of thinking far more rapidly than we have ever had to change them before. We must begin systematically to reduce and eliminate all CHIEF CAUSES of war.” Such causes do not lie in the war potentialities of a nation’s industries. To look at the problem thus is only to visualize our present day problems as mere reproductions of old ones. We must not fail to realize that “they are in principle a new kind of problem. They are not merely national problems with world implications. They are indisputably world problems and humanity problems.” We must cease to “ grapple with these tremendous matters with the thought that they are only more complex reproductions of problems which have plagued us since 1914.”
Let not “the implication of atomic explosion” fail to “spur men of judgment .... to seek a method whereby the peoples of the earth can live in peace and justice." But the course of action signified in the trial and punishment of the leaders of a defeated nation does not indicate much appreciation of this implication. Perhaps it has been truly said that “ the turbulent emotions aroused by watching trials of hated enemy leaders .... will leave little room for consideration of the fundamentals of world union. ...”
“Public understanding of the real condition of peace would not be increased, but rather confused, by all the emphasis upon one detail, the trials. ...”
The trials should not be allowed to use up the precious little thought that a peace-bound public may feel inclined to spare in order to find the way “to conquer the doubts and the fears, the ignorance and the greed, which made this horror possible.”
“The vindictive and oratorial pleas of the prosecutors in the language of emotionalized generalities did entertain rather than educate." We may not altogether ignore the possibility that perhaps the responsibility did not lie only with the defeated leaders. Perhaps the guilt of the leaders was only their misconception, probably founded on illusions. It may indeed be that such illusions were only egocentric. Yet we cannot overlook the fact that even as such egocentric illusions these are ingrained in human minds everywhere. It is very likely that, “When time shall have softened passion and prejudice, when Reason shall have stripped the mask from misrepresentation, then justice, holding evenly her scales, will require much of past censure and praise to change places."