DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL
According to the defense contention, these indicated further and further concessions on the part of Japan. In their submission, the position was more correctly appreciated by Ambassador Grew when he said:
“In regard to Japan’s Axis relations, the Japanese Government, though refusing consistently to give an undertaking that it will overtly renounce its alliance membership, actually has shown a readiness to reduce Japan’s alliance adherence to a ‘ dead letter ’ by its indication of willingness to enter formally into negotiations with the United States”.
I am afraid, here there seems to have been some misapprehension on the part of the parties. Referring to the statement of 6 September, the Defense says that it could not be denied that this statement at least implied that Japan would not be under German domination and that she would reach her own decision without reference to Germany. This certainly would be a substantial assurance if it was part of America’ s apprehension that Japan’s decision would be dominated by Germany. On the face of the negotiations up to this stage, there was nothing to suggest that America was in any way apprehensive of Japan’s decision being dominated or determined by Germany. Up to this stage, America never seems to have expressed her doubt about Japan’s independence in this respect and never suggested her suspicion that Japan might be dominated by the German view of the Pact. Her trouble hitherto seems to have been about Japan’s own independent interpretation.
If America was really viewing the situation thus, Mr. Ballantine was perfectly justified in characterizing the proposal as narrowing down the original suggestion. With the undertaking of September 6, Japan would have been forced not to limit “attack” to “aggressive attack” only.
On the other hand, if apprehension of “German domination” in the matter of interpretation of the Pact were anywhere in the negotiation, then certainly this proposal was an advance in the direction of removal of that apprehension .
That Japan understood the American position being based on some such apprehension was made clear by her during the subsequent course of the negotiation. I would better follow that course.
On 15 November there was a further meeting between Ambassador NOMURA and Secretary Hull at which the Secretary again brought up the Tripartite Pact question (Exh. 2,934). On this occasion the Secretary requested “reassurance of the peaceful promise which the Japanese Government had made on 28 August”.
The same day Ambassador KURUSU arrived in Washington and he had his first interview with Secretary Hull and President Roosevelt on 17 November. In the conversation with the President, the Tri-partite Pact question a- gain came up and Ambassador KURUSU pointed out that Japan, having treaty obligations as well as her national honour to consider, dared not commit treaty violations, “it was not to be assumed”, he said, “that the United States, which has been a strong advocate of observance of international commitments, would request Japan to violate one.
"Whereas Japan had stated that her action with respect to the obligation to go to war under the Tripartite Pact will be determined entirely independently, it appears that the U- nited States took it to mean that Japan intended to stab the United States in the back when she had become deeply entangled in the European War. He stated that such an interpretation was entirely wrong, and that clarification had been made to the effect that Japan would act independently, for the purpose of dispelling an apparent misapprehension on the part of the United States that Japan would, under the influence of Germany, move at Germany’s demand, "if some such broad understanding as was suggested by the President were reached at the present moment between Japan and the United States concerning the Pacific problems”, KURUSU went on, "it would naturally ‘ outshine" the Tri-partite Pact and American apprehension over the problem of application of the Pact would consequently be dissipated.”
In sending explanations to Ambassador NOMURA concerning Proposal B, Foreign Minister TOGO authorized the Ambassador, in explanation of the statement that “japan would decide independently” concerning its obligations under the Tri-partite Pact, to point out that “the Empire can decide independently as to whether or not there had been an attack wihout being bound to the interpretations of the other countries involved in the Tri-partite Treaty”. He was also asked to make it clear that there were no secret agreements in the Tri-partite Treaty. Consequently Ambassador KURUSU promptly called upon Secretary Hull to offer one further attempt at an interpretation of the alliance obligation satisfactorily to Mr, Hull. The Ambassador handed to the Secretary on 21 November a draft letter which he proposed to sign by way of attempting clarification. This letter is Exhibit 2, 945 and may be quoted here in full.
“Mr. Secretary: Through several conversations I have had the honour of holding with Your Excellency, I was rather surprised to learn that a deep- seated misconception prevails among your people about the obligation which Japan assumed under the Tri-partite Pact.
“As your Excellency is fully aware I am the one who signed the said treaty under the instructions of my Government; and I am very happy to make the following statement which I trust will serve to eradicate the aforesaid false impression:
“It goes without saying that this treaty cannot and does not infringe, in any way, upon the sovereign right of Japan as an independent state.
“Besides, as Article III of the Pact stands, Japan is in a position to interpret its obligation freely and independently and is not to be bound by the interpretation which the other high contracting parties may make of it. I should like to add that my Government is not obligated by the aforementioned treaty or any other international engagement to become a collaborator or co-operator in any aggression whatever by any third Power or Powers.
“My Government would never project the people of Japan into war at the behest of any foreign Power: it will accept warfare only as the ultimate, inescapable necessity for the maintenance of its security and the preservation of national life against active injustice.
“I hope that the above statement will assist you in removing entirely the popular suspicion which Your Excellency has repeatedly referred to. I have to add that, when a complete understanding is reached between us, Your Excellency may feel perfectly free to publish the present communication."
If America really apprehended German domination of Japan’s decision, here was a complete surrender by Japan.
But, apart from this question, statements contained in this letter certainly went far even in throwing light on the possible Japanese independent interpretation. It may be noticed that there was also the authorization to publish the letter upon conclusion of the Japanese-American understanding. It requires little imagination to conceive what would have remained of the Tripartite alliance once this letter was published.
Secretary Hull, however, thought that this would not be of any particular help and so dismissed it.
Bearing in mind that the demand of the United States was not an abrogation of the Tri-partite Pact by Japan but only such an interpretation of it as should be satisfactory to the United States, it is difficult to say that this proposal deserved such a summary dismissal. Perhaps by this time the Secretary was afraid that "what might go for” the current cabinet might not "go for the next cabinet”. By this time, it seems, the State Department thought that it knew Japan to be entirely insincere in the negotiations and therefore had no confidence in any undertakings which she might give. Rightly or wrongly, the State Department seems to have formed the opinion that Japan was only “keeping up the appearance of continuing negotiations”. It is very unfortunate, but that is what seems to have happened. Perhaps the intercepted telegrams as decoded by the U. S. were largely responsible for this unfortunate distrust. I shall come back to this presently while discussing those interceptions.
As noticed above, in their proposal of 16 May (Exh. 1,071), the United States had desired the government of Japan to declare “that it is under no commitment to the Axis Alliance or otherwise which is inconsistent with the terms of the proposed Japanese-American agreement”. The government of Japan certainly did declare this and I do not see why this declaration would not satisfy any reasonable requirement in this respect.
There seems to have been no further discussion of the Tri-partite question. Within a few days after the meeting of 21 November, Secretary Hull, having come to the decision to break it off, handed to the Japanese representative his note of 26 November which was the last document or proposal on the American side in the negotiation.
Of the three chief programs forming the subject matter of the Japanese- American negotiations, the question of the economic activities of the two nations in the Pacific area was an important one. The original Japanese position on this point as stated in the draft proposal of May 12 was this: “Economic activity of both nations in the Southwestern Pacific area—having in view that the Japanese expansion in the direction of the Southwestern Pacific area is declared to be of peaceful nature. American co-operation shall be given in the production and procurement of natural resources (such as oil, rubber, tin, nickel) which Japan needs” (Exh. 1,070).
On 16 May Secretary Hull produced a redraft of the clause in the following language; “On the pledged basis of guarantee that Japanese activity and American activity in the Southwestern Pacific area shall be carried on by peaceful means, the Japanese Government and the Government of the United States agree to co-operate each with the other toward ensuring on the basis of equality of opportunity equal access by Japan and by the United States to supplies of natural resources (such as oil, rubber, tin, nickel) which each country needs for the safeguarding and development of its own economy” (Exh. 1,071)
In discussing the matter, the Secretary ‘expressed the hope that subsequently other countries could be brought in”. He alluded in this connection to the fact that the benefits of our trade program in South America are enjoyed by all nations” (Exh. 2, 873)
On 31 May Ambassador NOMURA was handed a complete redraft of the proposed agreement. The relevant clause on economic activity stood thus: “On the basis of mutual pledges hereby given that Japanese activity and American activity in the Pacific area shall be carried on by peaceful means and in conformity with the principle of non-discrimination in international relations, the Japanese Government and the Government of the United States a- gree to co-operate each with the other toward obtaining non-discriminatory access by Japan and by the United States to commercial supplies of natural resources (such as oil, rubber, tin, nickel) which each country needs for the safeguarding and development of its own economy” (Exh. 1,078).
An oral statement accompanying the draft pointed out that the section had been re-phrased to make the provisions thereof applicable equally to the United S ta tes and Japan ( Exh. 1,079).
The significant alteration was the substitution of the word “Pacific” for “Southwestern Pacific”.
On 4 June the Japanese representatives offered another formula for this clause. Their proposal was in the following terms: “nothing that Japanese expansion in the direction of the Southwestern Pacific area is declared to be of peaceful nature, American co-operation and support shall be given in the production and procurement of natural resources ( such as oil, rubber, tin, nickel) whichjapan needs” (Exh. 1,083)
In explanation of limiting the application of the clause to the Southwestern Pacific area only, the Japanese side said that it was in view of the special interest of Japan in that area that it was felt that this section should be made to relate to it specifically.
On 15 June, however, the Japanese side accepted the wording “Pacific” and “mutual pledges” and presented a complete redraft of the agreement, which is Exhibit 1,087. The relevant clause stood thus: “On the basis of mutual pledges hereby given that Japanese activity and American activity in the Pacific area shall be carried on by peaceful means and in conformity with the principle of non-discrimination in international commercial relations, the Japanese Government and the Government of the United States agree to co-operate each with the other toward obtaining non-discriminatory access by Japan and by the United States to commercial supplies of natural resources (such as oil, rubber, tin, nickel) which each country needs for the safeguarding and development of its own economy.
The State Department responded promptly with what was to be the last proposal made by it in negotiations. This proposal was of 21 June, and Section 5 of the draft is in the identical language of the Japanese 15 June draft. The Japanese had then made the concession of accepting the two major concessions in this branch of the negotiations.
Thereafter the negotiations were suspended, being resumed in August.
On 6 August the negotiations were resumed and Ambassador NOMURA handed to Secretary Hull a proposal containing an additional item which runs thus: “ that in order to remove such causes as might be responsible for the instability of economic relations between Japan and the United States in East A- sia, the Japanese Government will co-operate with the Government of the U- nited States in the production and procurement of such natural resources as are required by the United States”.
Secretary Hull showed little interest in the proposal. Ambassador NOMURA however considered agreement to have been reached on this question. He was of the opinion “as to the three pending issues an agreement in principle had been reached so far as two of them were concerned”.
On September 6, negotiations not having progressed, a further Japanese proposal was presented. This is not a complete redraft of the understanding, but relates to certain points only, the part concerning economic activities being contained in two separate clauses: “that Japan’s activities in the Southwestern Pacific area will be carried on by peaceful means and in accordance with the principle of non-discrimination in international commerce, and that Japan will co-operate in the production and procurement by the United States of natural resources in the said area which it needs . . . that the United States will reciprocate Japan’s commitment in point A referred to above”.
Here there is return to the phraseology “ Southwestern Pacific area”.
The Japanese redraft proposal of 25 September came next, which still retains the limitation to the “ Southwestern Pacific area”. This new proposal was in the following form: “ Both the Governments mutually pledge themselves that the economic activities of Japan and the United States in the Southwestern Pacific area shall be carried on by peaceful means and in conformity with the principle of non-discrimination in the international commercial relations in pursuance of the policy stated in the preceding paragraphs: “Both the Governments agree to co-operate each with the other toward the creation of conditions of international trade and international investment under which both countries will have a reasonable opportunity to secure through the trade process the means acquiring those goods and commodities which each country needs for the safeguarding and development of its own country. Both Governments will amicably co-operate for the conclusion and execution of the agreements in regard to the production and supply on the basis of nondiscrimination of such specific commodities such as oil, rubber, nickel and
tin (Exh. 1,245-E)
Ambassador NOMURA was still reporting the economic question to the Foreign Minister on October 3 as having already been nearly settled. He, however, also noted that Mr. Hull abides by the principles of free trade and regards bloc-economy as a cause of war. He is now trying to make this principle prevail in regard to the United Kingdom also. There seems to have been no further development in the matter of economic activities until the KONOYE Cabinet was replaced by the TOJO Cabinet and proposal A was a- greed upon for submission to the United States. Proposal A was not actually a completely redrafted proposal; it consisted of modifications to be made in the proposal of 25 September.
The provision on economic activities appears in proposal A in the form of the following sentence to be included in a revision of Section 5 of the pending draft: “ Principle of Non-discrimination. The Japanese Government recognizes the principle of non-discrimination in international commercial relations to be applied to all the Pacific areas, inclusive of China, on the understanding that the principle in question is to be applied uniformly to the rest of the entire world as well. ” (Exh. 1,246)
The Defense contends that this was a complete acceptance of the American position on this question. The point again on 21 June is retained, with an addition to incorporate Secretary Hull’s desire often expressed in these negotiations of making the principle universal in application. It was supposed that this additional clause would be entirely satisfactory inasmuch as on the one hand it represented a total abandonment of the long-standing Japanese insistence on recognition of special Japanese rights in China growing out of geographical propinquity; and on the other hand, in suggesting the extension of the principle of non-discrimination to the whole world, it represented merely an application of the United States’ own suggestion that “it would be undesirable if either the United States or Japan were to pursue one course of policy in certain areas while at the same time pursuing an opposite course in other areas”.
The Prosecution, however, contended that “some of the wordings” suggested by the American side “were embodied but they were largely, in effect, nullified by the various qualifications the Japanese put in”.
It is in evidence that Ambassador NOMURA had pointed out to President Roosevelt that the application of the principle throughout the whole world was a long cherished scheme of Mr. Hull’s—that it was a consistent position of the Secretary of State. This might have been also the immediate reaction on Secretary Hull himself. Ambassador NOMURA reported that “after careful reading, Hull concurred in the clause respecting non-discrimination in trade and revealed his opinion that its adoption would prove beneficial also to Japan” (Exh.2,928)
Later on, however, on 15 November the Secretary handed to Ambassador NOMURA an oral statement in which he pointed out that the last sentence of the Japanese proposal “sets forth a condition, the meaning of which is not entirely clear”.
It was made clear that the principle was not meant to bind the United States to responsibility for practices outside of its jurisdiction or practices by other nations. The defense evidence is that what the Japanese Government meant by this phrase in question was that the principle would be applied by the United States and by Japan and did not refer to the universal application of those principles by all countries.
The Prosecution contends that this proviso was at the time well-known to be impossible of fulfilment. It is difficult to see why, with the explanation given above, it would be so impossible. At least it does not seem to have been so understood at that time. The Secretary of State said that the “earnest efforts on the part of the United States have ripened into the present proposal concerning the problem of commerce”. It seems it was thus perfectly understood and cordially welcomed. There was, therefore, no occasion for saying that the United States could not commit itself to anything which concerns countries outside its jurisdiction. No one really demanded that. It was quite understood that the parties were contracting for themselves, not for the world at large.
We may now turn to the THIRD QUESTION, which is by far the most important one. I mean the question of Ghinese-Japanese relations. In course of negotiations, the question ultimately narrowed down to the matter of the stationing of Japanese troops in China and their withdrawal therefrom.
In view of the complexity of the China affair, this question proved to be one of exceeding intricacy and difficulty. It may be remembered that this question brought about the downfall of a government in Japan.
THE FIRST JAPANESE PROPOSAL of 12 May contained the following provision relative to the China affair:
“The Relations of Both Nations Toward the China Affair.
“The Government of the United States, acknowledging the three principles as enunciated in the KONOYE statement and the principles set forth on the basis of the said three principles in the Treaty with the Nanking Government as well as in the joint declaration of Japan, Manchukuo and China, and relying upon the policy of the Japanese Government to establish a policy of neighbourly friendship with China, shall forthwith request the Chiang Kai- shek regime to negotiate peace with Japan (Exh. 1,070)
The following oral explanation was annexed to this:
“The terms from China-Japan peace as proposed in the original understanding differ in no substantial way for those herein affirmed as the principles of KONOYE. Practically, the one can be used to explain the other. We should obtain an understanding in a separate and secret document that the U- nited States would discontinue her assistance to the Chiang Kai-shek regime if Chiang Kai-shek does not accept the advice of the United States that he enter into negotiations for peace. If, for any reason, the United States find it impossible to sign such a document, a definite pledge by some high authorities will suffice. The three principles of Prince KONOYE as referred to in this paragraph are: (l) neighbourly friendship; (2) joint defense against communism; (3) economic co-operation—by which Japan does not intend to ex
ercise economic monopoly in China nor to demand of China a limitation in the interest of third powers.
The following are implied in the aforesaid principles:
1. Mutual respect of sovereignty and territories;
2. Mutual respect for the inherent characteristics of each nation cooperating as good neighbours and forming a Far Eastern nucleus contributing to world peace;
3. Withdrawal of Japanese troops from Chinese territory in accordance with
an agreement to be concluded between Japan and China;
4. No annexation, no indemnities, and
5. Independence of Manchukuo.
The corresponding section of THE AMERICAN PROPOSAL of 21 June stood as follows:
“Action toward a peaceful settlement between China and Japan.
“The Japanese Government, having communicated to the Government of the United States the general terms within the framework of which the Japanese Government will propose the negotiations of a peaceful settlement with the Chinese Government, which terms are declared by the Japanese Government to be in harmony with the KONOYE principles regarding neighbourly friendship and mutual respect of sovereignty and territories and with the practical application of those principles, the President of the United States will suggest to the Government of China that the Government of China and the Government of Japan enter into a negotiation on a basis mutually advantageous and acceptable for a termination of hostilities and resumption of peaceful relations.
“Note; The foregoing draft of Section III is subject to FURTHER DISCUSSION of the question of co-operative defense against communistic activities, including the stationing of Japanese troops in Chinese territory, and the consideration of economic co-operation between Japan and China. With regard to suggestions that the language of Section III be changed, it is believed that consideration of any suggested change can advantageously be given after all points in the annex relating to this section have been satisfactorily worked out, when this section and this annex can be viewed as a whole (Exh. 1, 092)
“Annex: The basic terms as referred to in the above section are as follows:
“ 1. Neighbourly friendship;
“2. “Co-operative defense against injurious communistic activities including the stationing of Japanese troops in Chinese territory” subject to further discussion;
“3. (Economic co-operation) Subject to agreement on an exchange of letters in regard to the application to this point of the principle of non-discrimination in international commercial relations;
“4. Mutual respect of sovereignty and territories;
“5. Mutual respect for the inherent characteristics of each nation cooperating as good neighbours and forming an East Asian nucleus contributing to world peace;
“6. Withdrawal of Japanese armed forces from Chinese territory as promptly as possible and IN ACCORDANCE WITH AN AGREEMENT TO BE CONTRACTED between Japan and China;
7. No annexation;
“8. No indemnities;
“9. Amicable negotiation in regard to Manchukuo.”
Points 2, 3, 6 and 9 in the American list of items are those on which there were differences at this stage.
Recognition of Manchukuo had been a term of the original draft proposal presented to Secretary Hull by Ambassador NOMURA (Exh. 1,059). The American counter-proposal of 31 May included a clause for “amicable negotiation in regard to Manchukuo” (Exh, 1,078)
The Secretary had told the Ambassador early in the conversations that the American “ position right along was that THAT WAS A QUESTION BETWEEN CHINA AND JAPAN, If China were voluntarily, through amicable negotiations, willing to agree to it, we had nothing to say”.
On 16 May, according to Mr. Hull’s own memorandum of the conversation, “There was some discussion of the questions of joint defense against communism and the recognition of Manchuria” . The Secretary indicated that if China and Japan could agree on the other points listed in the Japanese annex and explanation, he did not believe that difficulties which might arise over these two points would be such as to prevent an agreement between China and Japan (Exh. 2,873).
No. 3 of these items relating to economic co-operation in China eventually merged into the discussion of economic activities in the Pacific area generally, and in the world.
The remaining items taken together constitute the third of the basic points of contention between Japan and America in the negotiations. A SUBSIDIARY QUESTION, which came to assume more importance later, was the tendering of good offices by the United States between Japan and China with the object of ending the China Incident.
On 16 May, Secretary Hull said that he did not consider the question of joint defense against communism to involve such difficulties as would prevent an agreement between China and Japan. In his oral statement of that date he said:
“While one or two of the points might present difficulties, it is believed that, if China and Japan could come to agreement on the basis of the other points mentioned, the remaining points with some modification need not suffer insuperable obstacles. The principles embodied in the KONOYE statement as defined in the Annex and explanation as relating to neighbourly friendship, joint defense against communism, and economic co-operation free from economic monopoly or limitation of the interests of other countries, could, with some modification, it is believed, be acceptable” (Exh. 2,874).
THE QUESTION OF STATIONING OF JAPANESE TROOPS IN CHINA received early and intensive consideration. The question had two aspects:
1. The subject of leaving troops stationed in specified areas of China after conclusion of a general peace;
2. The withdrawal from the territory of China, after the peace, of Japanese forces other than those to be stationed in the areas specified.
The first of the above two matters underwent the most exhaustive exploration and offered the greatest difficulty in solution.
The second item was discussed relatively little and was eventually solved by Japanese agreement to the American terms.
On 20 May, Hull indicated that he did not care at that time to discuss the merits of the Japanese proposal to keep troops stationed in Chinese territory and to undertake joint defense against communism. He seemed to feel at that time that it should be “possible to cover these two points under some broader provision, such as a provision which would call for special measures of protection for Japanese nationals and property interests against lawlessness in areas where special measures for safeguarding the rights and interests of nationals of third powers were necessary” (Exh. 2, 875).
On 31 May, an American redraft of the proposal was presented. It retained the statement that the question of co-operative defense against communism was subject to further discussion, but contained the new provision that “withdrawal of Japanese military and naval forces from China” should be carried out “as promptly as possible” (Exh. 1,078).
Simultaneously Secretary Hull handed over another oral statement in which the undertaking was given that the “Government of the United States will at some appropriate stage prior to any definite discussion talk over in strict confidence with the Chinese Government the general subject matter involved in the discussions, especially as it relates to China” (Exh. 1,080)
On 4 June, an important meeting among members of the Japanese Embassy staff and representatives of the State Department took place. It was made clear in the course of discussion of revised clauses that notwithstanding Japan’s policy not to regard the Chungking government as more than a regional regime, she did not intend, in pursuance of the proposed understanding, to deal with Chungking for settlement of the China Incident, and that Japan expected to leave it to the Chinese people to decide whether the Nanking or the Chungking or a coalition of the two should be the eventual government of China. It was also made clear that the American proposal of providing by the agreement for withdrawal of naval as well as military forces was accepted with only the phraseology to be settled.
On 6 June, Secretary Hull contended that the proposed revisions of 4 June had gradually narrowed down the Japanese proposal of 12 May.
Some ten days later, on 15 June, the Japanese revised counter-proposal was presented. On 21 June, the United States also produced a revised proposal together with an oral statement. The section of the proposal relating to the China question is, with one exception, in the identical words of the draft of 31 May. The exception is an addition to the note suggesting that questions of verbal change in this section can advantageously be postponed to solution of the details of the problem.
In the oral statement the Secretary for the first time expressed his misgiving over the desire of Japan to retain the right of stationing its troops in Inner-Mongolia and North China as a measure of co-operation with China in resisting communistic activities. He also expressed his feeling that this proposal might affect the sovereign rights of a third country.
We need not enter into details of these negotiations in this connection. A Japanese proposal of 6 September was handed to Ambsasador Grew by Foreign Minister TOYODA. Mr. Grew reported his views of this proposal to the State Department. His conclusion was that in respect to the China question, “the commitments contained in the latest Japanese proposal, if implemented, would fulfil this requirement of the cessation on the part of Japan of its progressive acts of aggression”.
Mr. Grew pointed out that “if an adjustment of relations is to be achieved, some risk must be run, but the risk taken in the pursuance on our part of a course which would not only provide inducements to the Japanese to honour their undertakings but would also leave to the United States Government a certain leverage of compulsion would appear to be relatively less serious than the risk olf armed conflict entailed in the progressive application of economic sanctions which would result from a refusal to accept these proposals (Exh. 2,896).
Meanwhile, for use in explanation of the current proposals, Foreign Minister TOYODA sent instructions to the Embassy, handing a copy of them to Ambassador Grew on 13 September (Exh. 2, 899). This explanation stood thus:
“For the purpose of preventing communistic and other subversive activities threatening the safety of both Japan and China and also of maintaining the peace and order in China, Japan and China will co-operate in the form of common defense. The execution of the common defense by Japan and China will contain the stationing of Japanese troops for a certain period in accordance with the agreements between both countries. The Japanese troops, which have been sent to China with the object of executing the China affairs, will be withdrawn when the said affairs have been settled.”
In his elaborate oral statement of 2 October, Secretary Hull seems to have departed a great way from his original position that the matter of stationing Japanese troops in China was subject to further discussion. In this oral statement he said, “This Government has noted the views of the Japanese Government in support of its desire to station troops for an indeterminate period in certain areas of China. Entirely apart from the question of the reasons for such a proposal, the inclusion of such a provision in proposed terms of a peaceful settlement between Japan and China at a time when Japan is in military occupation of large areas in China is open to certain objections. For example, when a country in military occupation of territory of another country proposes to the second country the continued stationing of troops of the first country in certain areas as a condition for a peaceful settlement and thus for the withdrawal of the occupationary forces from other areas, such procedure
would seem to be out of keeping with the progressive and enlightened courses and principles which were discussed in the informal conversations and thus would not, in the opinion of this Government, make the peace or offer prospects of stability” (Exh. 1,245-G).
It must be said that however sound in principle this statement may be, remembering the course which the negotiation took, it is difficult to withhold the observation that the position now taken was not quite consistent with the position hitherto assumed for the purpose of the negotiation.
The available evidence makes it questionable whether thenceforward the State Department did really negotiate on the question at all ; further Japanese efforts thereafter were given scant consideration. Tokyo, it seems, came gradually to feel a lack of sincerity in the American attitude.
On 16 October 1941 the KONOYE Cabinet fell. The direct and proximate cause of this change of government was the question of the stationing of troops in China in relation to the Japanese-American negotiations, as is explained by Prince KONOYE himself in his memoirs (Exh. 2,914).
In a last effort to save the negotiations, Foreign Minister TOYODA had prepared and submitted to Premier KONOYE his estimate of what would be necessary to secure American understanding on the troop stationing problem. It proved impossible in the end to secure internal agreement to the making of such concessions as he thought essential. The Cabinet resignation came about in consequence.
Upon formation of the TOJO Cabinet, the study of the entire question of the Japanese-American negotiations was made the first order of business. The first product of this process of reconsideration was a new Japanese proposal, known as proposal A, which was presented to Secretary Hull on 7 November and to President Roosevelt on the 10th. This proposal provided thus:
“Disposition of Japanese Forces
“(A) Stationing of Japanese forces in China and the withdrawal thereof:
“With regard to the Japanese forces that have been despatched to China in connection with the China Affair, those forces in specified areas in North China and Mengchiang (inner Mongolia) as well as in Hainan-tai (Hainan Island) will remain to be stationed for a certain required duration after the restoration of peaceful relations between Japan and China. All the rest of such forces will commence withdrawal as soon as general peace is restored between Japan and China, and the withdrawal will proceed according to separate arrangements between Japan and China and will be completed within two years with the firm establishment of peace and order.
“(B) Stationing of Japanese forces in French Indo-China and the withdrawal thereof:
“The Japanese Government undertakes to guarantee the territorial sovereignty of French Indo-China. The Japanese forces at present stationed there will be withdrawn as soon as the China Affair is settled or an equitable peace is established in East Asia.
“Principle of Non-Discrimination
“he Japanese Government recognizes the principle of non-discrimination in international commercial relations to be applied to all the Pacific areas, inclusive of China, on the understanding that the principle in question is to be applied uniformly to the rest of the entire world as well.”
By proposal A, Japan was prepared for the first time to state DEFINITELY THE AREAS in which would be stationed the troops to remain in China after the conclusion of a Sino-Japanese peace.
Here for the first time during the negotiations was stated specifically in a formal proposal the condition of retention of troops in Hainan. Then again for the first time in the course of the negotiations, by proposal A Japan placed a DEFINITE LIMIT ON THE TIME for withdrawal from China of troops generally after the conclusion of peace.
Ambassador NOMURA was instructed with the proposal A that in case the United States inquires into the length of the necessary duration, reply should be made to the effect that THE APPROXIMATE GOAL IS TWENTY-FIVE YEARS. Twenty-five years might have been a reasonable period in the circumstances or it might have been unreasonable, but that is not the question before us. If it was unreasonable, one would expect further negotiation on the point. America, however, did not show any interest in the matter.
Some days after the presentation of proposal A, the question of the number of troops to be stationed in China after the peace was also clarified by the Japanese. At a conversation with Mr. Hull on 18 November, Admiral NOMURA, apparently having obtained more definite instructions, in response to a question, ‘how many soldiers would the Japanese want to retain in China’, answered by saying that possibly 90 per cent WOULD BE WITHDRAWN.
Mr. Ballantine told us how America viewed this proposal. I shall presently consider his views. In the meantime America intercepted several telegrams sent from Tokyo to Ambassador NOMURA and, it seems these intercepted telegrams largely influenced the American attitude.
The interception of messages may indeed be regarded as the tragedy of the Japanese-American relations. The Department of State did not know what was in the Embassy ’ s correspondence ; it had before it the intercepted telegrams as decoded and translated by the intelligence service of the United States. These interceptions certainly indicated the watchfulness, sagacity and hard work of this service. At the same time it seems NOW that the interceptions succeeded only in conveying half knowledge, if not sometimes altogether contrary knowledge to the State Department.
By way of illustration, the Defense placed before us three of such intercepted messages, these three being those conveying to Ambassador NOMURA Proposals A and B and the intention behind them.
THE FIRST is Foreign Minister TOGO’s telegram No. 725 of 4
November, advising Ambassador NOMURA of the anticipated approval by the Imperial Conference of the following day of Proposals A and B, and explaining the intention with which the TOJO Cabinet had determined to continue the Japanese-American negotiations. The original telegram as found in the Japanese Foreign Office and presented to us by the Defense is Exhibit 2, 924 in this case. Its intercept as decoded and translated by the Intelligence Service of the U. S. is Exhibit 1, 164. There is not much factual error of any apparent consequence in the intercepted version. Yet the whole spirit of the communication seems to have suffered such a distortion as is likely to give rise to some misgiving in the mind of one reading this intercept about the trend of its author’s intention.
I would place certain corresponding passages from these two documents in order to show how one fails to represent the correct spirit of the other.
THE ORIGINAL DOCUMENT runs as follows:
"1. Strenuous efforts are being made day and night in order to adjust Japanese-American relations, which are on the verge of rupture. The Government has held daily meetings of the Liaison Conference with the High Command to examine the fundamental principles of our national policy. After long and thorough deliberations and discussions, the Government and the High Command have reached unanimous agreement on the proposals in the Japanese-American negotiations
“2. The situation both within and outside the country is extremely pressing and we cannot afford to allow any procrastination. Out of the sincere intention to maintain peaceful relations with the United States, the Imperial Government continues the negotiations after thorough deliberations. The present negotiations are our final effort, and you must realize that these proposals are truly our last. If speedy conclusion of the negotiations is not to be attained even on the basis of these proposals, breakdown of the negotiations is unavoidable, however regrettable it may be. Relations between the two countries face rupture in such a case. The future of our country is profoundly involved in the outcome of the present negotiations and the security of the Empire depends on it.
"3. Our Government has made concession after concession, in spite of difficulties, for the speedy consummation of the negotiations, but the United States insists on the assertions with which she started, showing no response whatsoever to our concessions. There are not a few in this country who are suspicious of the real intention of the United States. In such circumstances, it is only out of our sincere desire to maintain the peace of the Pacific that we express our sincerity and dare to make further concessions.
Now that we make the utmost concession in the spirit of utmost friendliness for the sake of peaceful solution of the situation, we hope earnestly that the United States will reconsider the matter and approach this grave situation properly.
“5 In view of the serious nature of the negotiations, I intend to carry on talks with the American Ambassador in Tokyo parallel
with the negotiations in Washington. In order to avoid any contretemps, you are directed to abide strictly by your instructions and you are given no room for discretion.”
THE INTERCEPT runs as follows:
“l. Well, the relations between Japan and the United States have reached the edge, and our people are losing confidence in the possibility of ever adjusting them. In order to lucubrate on a fundamental national policy, the Cabinet has been meeting with the Imperial Headquarters for some days in succession. Conference has followed conference, and now we are at length able to bring forth a counterproposal for the resumption of Japanese-American negotiations based upon the unanimous opinion of the Government and the Military High Command.
“2. Conditions both within and without our Empire are so tense that no longer is procrastination possible, yet in our sincerity to maintain pacific relationships between the Empire of Japan and the United States of America, we have decided as a result of these deliberations, to gamble once more on the continuance of the parleys, but this is our last effort. Both in name and spirit this counter-proposal of ours is indeed the last. I want you to know that. If through it we do not reach a quick accord, I am sorry to say the talks will certainly be ruptured. Then indeed will relations between our two nations be on the brink of chaos. I mean that the success or failure of the pending discussions will have an immense effect on the destiny of the Empire of Japan. In fact, we gambled the fate of our land on the throw of this die.
“3. Hoping that we could fast come to some understanding.
we have already gone far out of our way and yielded and yielded. The United States does not appreciate this, but through thick and thin sticks to the self-same propositions she made to start with. Those of our people and of our officials who suspect the sincerity of the Americans are far from few. Bearing all kinds of humiliating things, our Government has repeatedly stated its sincerity and gone far, yes, too far, in giving in to them. There is just one reason
why we do this—to maintain peace in the Pacific. This time we are showing the limit of our friendship; this time we are making our last possible bargain, and I hope that we can thus settle all our troubles with the United States peaceably.
“5. In view of the gravity of these talks, as you make contacts there, so I will make them here. I will talk to the American Ambassador here in Tokyo and as soon as you have got the consensus of the American officials through talking with them, please wire me. Furthermore, lest anything go awry, I want you to follow my instructions to the letter. In my instructions, I want you to know there will be no room for personal interpretation.”
The whole spirit of the intercept seems to be wrong. Mr. Blackeney for the defense perhaps was right when he said that “a reading of the two documents in parallel will expose the dichotomy of the flamboyant, reckless gambler whose message the State Department read, and the sober, responsible statesman seriously communicating with his ambassador”. Certainly the author of the telegram in instructing his ambassador was not thinking of “gambling once more on the continuance of the parleys”. There is nothing in his communication sporty or anything in the spirit of bargaining. His appreciation of the gravity of the situation, his grave concern with fate of his country in case the negotiation really remains closed, his expression of grave concern equally felt by the whole Cabinet and the High Command, his earnestness are all lost.
Next, we may compare Exhibit 2, 925, the original telegram transmitting Proposal 'A' and explanation of it, and Exhibit 1, 165, its intercept as decoded and translated by the American intelligence service. We may put a few excerpts from the original and from its intercept in parallel columns so as to see how they stand to each other:
"Much comment is not needed here. The first few excerpts from the intercept perhaps would sufficiently explain the American impression of the Japanese bad faith. "We now see that what the State Department knew as Japan’s “revised ultimatum” was really a proposal setting forth, not even an absolutely final concession, but only what was VIRTUALLY final concessions. A “reply to the effect that the approximate goal is 25 years is not answering “vaguely that such a period should encompass 25 years”. When “it is proposed to dismiss . . . suspicion by defining the area and duration”, it is really unkind to take the purpose to be “to shift the regions of occupation and .... officials, thus attempting to dispel .... suspicions”. “Necessary duration” as explained in the original certainly can be a sincere statesman’s explanation and honest direction. But no statesman can claim any honesty or sincerity if he directs his ambassador as in the corresponding intercept. Even a statesman who designs “to baby his opponents for some time" would not expose himself thus to the ambassador of his country. Of course, no one will contend that withdrawal of a contention is the same as keeping it off for another occasion.
This telegram was indeed a crucial factor in moulding the State Department’s attitude in the negotiations.
Coming to the question of the American four principles, the paragraph in the intercepted message is given a separate number, (4), thereby making it appear co-ordinate with “(1) Non-discrimination and Trade”, “(2) Interpretation and Application of the Tri-partite Pact” and “(3) Withdrawal of Troops”. By thus seeming to be one of the main divisions of the message and cognate with the others, and by omission of the words “the four principles” and instead referring to anxiety to avoid having “this” included in the agreement, this clause of course says that the Japanese will try to escape committing themselves to a formal agreement embodying the points which they have proposed above—all of them. “Naturally”, the State Department was on its guard in dealing with anyone believed to have sent such a message as this.
Even on the most important topic relating to the Tri-partite Pact, the intercept was a ruthless distortion.
Last of the three telegrams available for comparison is No. 735, of 5 November, from Foreign Minister Togo to Ambassador Nomura. The original is Exhibit 2, 926 and its intercept is Exhibit 1, 170. There is in the two versions of this message only one difference worth calling attention to, but that one is of considerable importance in view of the prosecution’s assertions of the final nature of Proposals “A” and “B”.
According to the defense, Proposal “B” was an attempt at a modus vivendi, and as such properly and accurately described as a “last resort to save the situation” if negotiations for a substantive agreement seemed for the moment to have broken down. It is in this sense of a last-resort effort that Proposal “B” is described in the succeeding paragraph of the original telegram as “the final proposal”. This is a different matter from an absolutely final proposal, in the Prosecution’s sense of an ultimatum.
It might have been noticed that the telegram spoke about parallel conversation between the Foreign Minister, Togo, and the local United States’ Ambassador. It is in evidence that Mr. Grew from time to time communicated his views of the situation as also of the Japanese attitude. It is very unfortunate that not much importance seems to have been attached to his views. In my opinion, in view of the contents of the telegram, and of Mr. Grew’s unwavering opinions, the State Department might apprehend that perhaps the decodification of the interception did not represent the correct state of things. At any rate, there were those misgivings and the whole unfortunate situation might be well explained if we only keep these misgivings in view.
Mr. Grew on more than one occasion urged upon his government the wisdom of giving Japan an opportunity to prove whether her professed desire to establish a reorientation was sincere. The Department of State did not accept his advice, nor apparently did the British Government urge it to do so, in reliance upon the advice of its own ambassador, Sir Robert Craigie.
Questions arising out of Japan’s movement into southern French Indo- China in July 1941 presented from that time A FOURTH QUESTION of major importance in the Japanese-American negotiations. This question ruptured the negotiations for a time, induced American suspicion of subsequent Japanese professions of peaceful intent, and contributed to the American decision to rupture economic relations with Japan.
When the Japanese-American negotiations opened, Japanese troops were already stationed in the northern areas of French Indo-China, under agreement entered into in September 1940 with the then government of France: (Exh. 620). The Indo-China question, however, was not directly raised in the Washington negotiations until almost a year later. The question was raised when the further Japanese advance into the SOUTHERN PART of the colony was made under the agreement with France for joint defense (Exh. 651).
Japan claimed that it was a precautionary measure against such an encirclement as would menace Japan’s economic existence, and would affect Japan’s position in the China affair.
The French and Japanese governments had reached an agreement about 20 July 1941 for the occupation of certain bases in southern Indo-China (Exh. 6, 478) . From 5 July rumours of such a move had been afloat; and on that day the State Department had pointed out to Ambassador Nomura the harmful effect upon the negotiations then in progress of such a move.
The agreement with France was nevertheless executed. Ambassador Nomura obtained an interview with President Roosevelt on the 24th; the Presi
dent warned him that if the move into southern Indo-China was carried through, it would probably be unavoidable for him to impose an oil embargo on Japan. The President suggested that it might be possible to withdraw the Japanese troops then stationed in Indo-China if the area could be neutralized by agreement and resources made freely and equitably available.
The final protocol for joint Franco-Japanese defense of Indo-China was, however, executed and Japanese troops moved in on 29 July.
Prior to this, however, on 26 July, as a professed counter-measure to execution of the agreement of the 20th, President Roosevelt by executive order had frozen all Japanese assets in the United States, Britain and the Netherlands following suit.
It may be of some importance to note that on 2 July, at least three days before the State Department even heard any rumours of the Indo-China move, the Japanese Embassy had already heard rumours that the freezing of assets was under contemplation or had been decided on by the State Department. President Roosevelt claimed on the 24th that he had been able theretofore to resist this freezing order on the ground of maintaining the peace of the Pacific. The strong public sentiment had been for embargo on the export of petroleum to Japan. He could resist it till then but that the move into southern Indo-China would deprive him of his justification. Japan, on the other hand, claimed that this embargo had already been decided on and that that is why Japan had to take this move in order to escape from the immediate consequences of this embargo.
As a consequence of the Indo-China move and the rupture of economic relations by the American freezing order of 26 July, negotiations languished for some weeks.
The United States felt that Japan’s action in making the southward advance was menacing and was inconsistent with her professed purpose of working for a comprehensive peaceful settlement of the Pacific problems.
On 6 August Ambassador Nomura received a new Japanese suggestion in the form of an answer to the President’s proposal of 24 July of neutralization of Indo-China. This gave him an opportunity to make another approach. He presented the proposal to Secretary Hull on the same day.
Japan did not accept the President’s suggestion but offered to undertake to withdraw the troops, already dispatched, upon the settlement of the China Incident, provided America undertook to suspend military measures in the South Pacific and advise the British and Netherlands governments to do the same. The United States was to recognize a special status of Japan in French Indo-China even after the withdrawal of the Japanese troops from that area.
We are not much concerned here with the details of the negotiations. Ambassador Nomura made a suggestion that a meeting be arranged between the President and the Premier of Japan to make an exchange of views with an eye to the general peace of the world. The President discussed various aspects of such a meeting with much apparent interest and ultimately handed over two oral statements to the Ambassador.
One was a serious warning to Japan that America would be compelled to take all steps which it might regard as necessary if the Japanese Government took any further steps in pursuance of a policy or program of military domination, by force, or threat of force of neighbouring countries.
The other document was in reference to the proposed meeting of the heads of the two states. It said, “in case the Japanese Government feels that Japan desires and is in a position to suspend its expansionist activities, to readjust its posit on and to embark upon a peaceful program for the Pacific a- long the lines of the "program and principles to which the United States is committed, the Government of the United States would be prepared to consider resumption of the informal exploratory discussions which were interrupted in July and would be glad to arrange a suitable time and place to exchange views."
On 6 September the Japanese counter-proposal designed to reopen the negotiations was delivered. The clause relative to Indo-China provided “that Japan will not make any military advancement from French Indo-China a- gainst any of its adjoining areas, and likewise will not without any justifiable reason, resort to any military action against any regions lying south of Japan” (Exh. 1,245-D)
This proposal was handed over to Ambassador Grew beforehand and on it he had sent to the State Department his opinion whereon his conclusion was that in respect to the China question, the commitments contained in the latest Japanese proposal, if implemented, would fulfil this requirement of the cessation on the part of Japan of its progressive acts of aggression (This is Exhibit 2, 898 in this case) .
Of the clause in the proposal relating to Indo-China and those concerned with China and with the Tri-partite Pact, Ambassador Grew felt that the commitments contained in the Japanese proposal, if implemented, would fulfil the basic requirements of a satisfactory solution of the Pacific problems. Mr. Hull, however, felt that the proposal as a whole had narrowed down the spirit and scope of the proposed understanding.
The proposal by Japan of 25 September introduced a new idea into the negotiation over the Indo-China question. This was: “The Government of Japan will not make any armed advancement, using French Indo-China as a base, to any adjacent area thereof (excluding China) and upon the establishment of an equitable peace in the Pacific area, will withdraw its troops which are now stationed in French Indo-China, ” (Exh. 1,245-E)
The new element in this proposal is the provision for withdrawal upon conclusion of AN EQUITABLE PEACE in the Pacific area. This expression, “equitable peace in the Pacific area”, seems to have been explained as far back as 28 August in a telegram of explanation to Ambassador Nomura. Therein it was written, “that the withdrawal of Japanese troops can be considered EVEN WHILE the China Affair is not yet brought to a general settlement, if the Ghi- ang Kai-shek regime descends literally to a local government owing to the closing of the supply routes, normal relations between Japan and China are in effect restored, and equitable and free acquisition of resources from French Indo-China is assured to Japan”. (Exh. 2, 920). This shows that Japan had come to the point of abandoning the contention that the troops must be stationed in Indo-China to see the China Affair through.
So, this clause relating to equitable peace does not really narrow down the original terms. It is a substantial concession.
The Prosecution contended that Japan being already committed to France, the agreement to withdraw troops upon conclusion of the China affair or conclusion of an equitable peace in the Pacific area does not amount to a concession. This, in my opinion, confuses the issue. It does not matter whether what Japan was now promising to do she was bound to do by reason of her agreement with another power. Whether or not she was making any concession in course of her negotiations with America must be judged by how the negotiations started and what in course of these she was agreeing to do, irrespective of the consideration that what she was agreeing to do it was already her duty to do.
Negotiations went on with no notable progress into November.
Proposal A had only one difference in the Indo-China section from the 25 September draft. It added a proviso that the Japanese Government undertakes to guarantee the territorial sovereignty of French Indo-China. The word “guarantee” is used in place of assurances.
The changes in Japan’s position on the three chief issues of the negotiations were briefly as follows:
(1) In the matter of interpretation of the Tri-partite Pact, Japan had receded from her original stand that her obligations would be applied in accordance with the stipulation of Article III of the Pact to the point of giving assurances that, should America participate in the European War, Japan would decide entirely independently in the matter of interpretation of her obligation. Japan had also agreed to insertion in any agreement of a provision that both governments will be guided in their conduct by considerations of protection and self-defense. (2) The question of economic activities had once been completely settled by Japanese concession of the American position, though later the positions of the parties moved apart again. The only real question here was whether the agreement for non-discriminatory international commercial relations was to be restricted to the Southwest Pacific area or to the Pacific area as demanded by the United States.
The third and crucial point, the question of withdrawal of Japanese troops from China, showed little progress during this period (KONOYE Cabinet). The whole matter remained only subject to further discussion.
The TOJO Cabinet, through its Proposal A, made the first really significant concessions in this respect.
Proposal A on its face represented no significant change in the Japanese position regarding the Tri-partite Pact question. Remembering, however, America’s preparations and the measures already taken by America, Japan’s commitment to make her own decision of the character of America ’ s acts would in this context take an entirely different meaning from what it had had before. If America had already, before Proposal A was handed over on 7 November, gone to war against the European Axis members and if Japan, knowing full well of this, had not attacked America and on the other hand were saying that she would herself adjudge the character of the measures taken by America and was entering into this agreement with America, it seems that that would have implied that those measures at any rate were being adjudged as measures in self-defense. In my opinion, the State Department might take the same view as was done by Mr. Grew.
In regard to the question of economic activities, Proposal A stood thus:
“Japan recognizes the principle of non-discrimination in international commercial relations to be applied to all the Pacific areas, inclusive of China, on the understanding that the principle in question is to be applied uniformly to the entire world as well." It was explained that the condition would bind only the contracting nations and would not bind them to control the conduct of third powers.
As regards withdrawal of troops from China, some concession can be said to have been made in Proposal A as has been pointed out above.
Proposal ‘B' is Exhibit 1,245-H, in this case. It runs as follows:
“l. Both the Governments of Japan and the United States undertake not to make any armed advancement into any of the regions in the Southeastern Asia and the Southern Pacific area excepting the part of French Indo-China where the Japanese troops are stationed at present.
“2. The Japanese Government undertakes to withdraw its troops now stationed in French Indo-China upon either the restoration of peace between Japan and China or the establishment of an equitable peace in the Pacific area.
“In the meantime, the Government of Japan declares that it is prepared to remove its troops now stationed in the Southern part of French Indo-China to the northern part of the said territory upon the conclusion of the present arrangement which shall later be embodied in the final agreement.
“3. The Government of Japan and the United States shall co-operate with a view to securing the acquisition of those goods and commodities which the two countries need in Netherlands East Indies.
“4. The Governments of Japan and the United States mutually undertake to restore their commercial relations to those prevailing prior to the freezing of the assets.
“The Government of the United States shall supply Japan a required quantity of oil.
“5. The Government of the United States undertakes to refrain from such measures and actions as will be prejudicial to the endeavours for the restoration of general peace between Japan and China."
Mr. Ballantine in his evidence said that its acceptance “would have meant condonement by the United States of Japan's past aggressions, assent by the United States to unlimited courses of conquest by Japan in the future, abandonment by the United States of its whole past position in regard to the
most essential principles of its foreign policy in general, betrayal by the United States of China, and acceptance by the United States of a position as a silent partner aiding and abetting Japan in her effort to create a Japanese hegemony in and over the Western Pacific and Asia; it would have destroyed the chances of asserting and maintaining American rights and interests in the Pacific; and in its final analysis would have made a most serious threat to American national security.”
Later on he says, “Their conditional offer to withdraw troops from Southern Indo-China to Northern Indo-China was meaningless as they could have brought those troops back to Southern Indo-China within a day or two, and furthermore, they placed no limit on the number of troops they might continue to send there."
In this view the whole negotiation was meaningless. If this was the United States’ attitude toward Japanese offer and undertaking, then it is difficult to understand why the United States’ authorities at all agreed to such negotiations. By revealing this attitude they raise a suspicion that perhaps they only wanted to take time.
On November 26, the Secretary of State made a reply to the Japanese representatives in the form of two documents, the first, an outline in a tentative form of a proposed basis for agreement between the United States and Japan, and the second, an explanatory statement in regard to it. This Hull note of 26 November is Exhibit 1, 245-1 in this case. It commences with a statement of general principles. The operative provisions are found in the second section, entitled, “Steps to be Taken by the Government of the United States and the Government of Japan”. These may be summarized as follows:
“l. The two Governments to endeavour to conclude a multilateral nonaggression pact among themselves and the British Empire, China, the Netherlands, the Soviet Union and Thailand.
“2. The two Governments to endeavour to conclude among themselves and the British, Chinese, Dutch and Thai Governments an agreement for respecting the territorial integrity of French Indo-China, for joint consultation over necessary measures to meet any threat to it which might develop, and for maintenance of equality of commercial opportunity in Indo-China.
“3. Japan to withdraw all military, naval, air and police forces from China and Indo-China.
“4. The two Governments to support no government or regime in China other than the Chungking Government.
“5. Both Governments to give up all extra-territorial rights in China, including rights under the Boxer Protocol and concessions, and to endeavour to obtain the agreement of other Governments to do likewise.
“6. The two Governments to enter into negotiations for conclusion of a trade agreement based on most-favoured-nation treatment and reduction of trade barriers.
“7. The freezing of assets to be rescinded by both Governments.
“8. A plan to be agreed upon and a fund established for stabilization of the dollar-yen rate.
“9. Both Governments to agree that no agreement which either had concluded with any third Power should be interpreted in such a way as to conflict with the fundamental purpose of this agreement, the establishment and preservation of peace throughout the Pacific area.
“10. Both Governments to use their influence to induce other nations to adhere and give practical application to the basic political and economic principles of this agreement."
The Japanese Government took this as ignoring the progress toward any understanding by the eight-months negotiations.
1. The multilateral Non-aggression Pact had never before been mentioned, so far as the evidence discloses, in the negotiations. This proposal thus imported into the discussion two additional nations, the U.S. S. R. and Thailand, and also suggested actions which would mean much time;
2. Japan had already, by Proposal B, abandoned any claim on her part
to special rights in French Indo-China. To put the matter in the form of a multilateral agreement would only complicate the solution of the Indo-China problem;
3. The clause provides for the withdrawal of Japanese forces—military, naval, air and police—forthwith and unconditionally from China and Indo-China;
4. The proposed mutual undertaking to support no government or regime in China other than that of Chungking was also a radical new departure in two ways:
(а) The question of Manchukuo had hitherto always been subject to
further discussion; Japan had included recognition of Manchukuo. By this proposal the discussion is cut off, Manchukuo is to be abandoned;
(б) Similarly the Hull note requires the repudiation of the Wang Ching-wei regime.
5. The proposal of abandonment by the parties of all extra-territorial rights in China was certainly not a request that Japan should do something that she was already committed to do.
(6-8 need not be commented on.)
9. The clause aimed at the Tri-partite Pact goes considerably beyond America’s insistence theretofore, amounting in effect to the requirement that the Pact be repudiated. The phrasing of the clause, on the face of it, is not offensive but read in the context, it might go much beyond the previous American demands.
We may compare the Hull note of 26 November with the American proposal of 21 June (Exh. 1, 092), putting the terms in parallel lines. They would stand thus:
The defendants considered this note as an ultimatum. As one of the defendants pointed out, “Such a political condition or situation would of itself affect even the area of Korea. That is to say, Japan would be placed in a predicament wherein she must also withdraw from Korea. Her Continental interest totally abandoned, her prestige in Asia vanished, Japan truly, vis-a- vis international relations, would have been placed in the same situation that she is in today. To say that again in different words, this demand was asking Japan to return to a situation and circumstances which were already much worse than the situation which existed at the time of the Manchurian Incident. Or, more than that, to return to the situation in which Japan was before the Russo-Japanese War. In other words, this was asking for Japan’s suicide as a great Power in East Asia (R. P. 34, 665)
Even contemporary historians could think that “as for the present war, the Principality of Monaco, the Grand Duchy of Luxembourg, would have taken up arms against the United States on receipt of such a note as the State Department sent the Japanese Government on the eve of Pearl Harbour.”
A contemporary American historian says:
"It required no profound knowledge of Japanese history, institutions, and psychology to warrant two other conclusions respecting the memorandum of November 26, 1941. First, that no Japanese Cabinet, “liberal” or reactionary, could have accepted the provisions of the memorandum as a basis of negotiating a settlement without incurring the risk of immediate overthrow, if nothing worse. Second, that every high official in the State Department, especially in the division concerned with Far Eastern affairs, must have been aware, while the memorandum was being framed, that the Japanese Government would not accept it as a program of renewed conversation ‘looking toward the maintenance of peace in the Pacific’. Nor was it to be supposed that President Roosevelt and Secretary Hull were so unfamiliar with Japanese affairs as to imagine, on November 26, 1941, that Tokyo would accept the terms of the memorandum or that the delivery of the document to Japan would prove to be otherwise than a prelude to war.”
President Roosevelt and Secretary Hull were so certain of Japanese refusal to accept the proposals of the memorandum that, without waiting for the Japanese reply, they authorized a war warning to the American outpost commanders the very next day after the document had been handed to the Japanese representatives. The Roberts Report declared that the American outpost commanders had been duly warned of the coming war as early as November 27.
A scrutiny of this Hull note would reveal that it categorically rejected the Japanese proposal for a modus vivendi. The memorandum made it patent that America did not choose to follow the methods long recognized in diplomacy as calculated to arrive at such a modus vivendi. It did not limit the issues to primary and essential terms. In deciding upon the substance of the memorandum, it refrained from directing the main emphasis to the recent southward movements of Japanese troops which might be said to have menaced the Philippines as well as British and Dutch possessions in that area. It ignored that Japan had already offered to withdraw her troops from the south and thus to remove cause for this menace.
At no time in the whole course of the negotiations before this note, had the Government of the United States proposed to Japan such a sweeping withdrawal from China over a veiled threat of war and under the pressure of economic sanctions known by the American authorities as likely to lead to war.
Instead of limiting the demands to the protection of the Philippine Islands, for which the United States still had the obligation, or even to the minimum terms necessary to protect the British and Dutch imperial possessions against Japanese aggression, the note amounted to the maximum terms of an American policy for the whole Orient. It called upon Japan to withdraw all military, naval, air and police forces from China and Indo-China; to recognize only the Chungking Government; to make additional concessions of a similar nature; to observe in China the political and economic practices once covered by the “open door”, in short to undo everything hitherto done by Japan in the name of modus vivendi. It represented in sum and substance an expansion of the very doctrine to cover all China, Indo-China, and indeed almost any part of the Orient, which ten years previously President Hoover, despite the urging of his Secretary of State, had firmly refused to support by economic sanctions and war in respect of Manchuria alone.
In 1931 President Hoover had solemnly informed his Cabinet that, deplorable as they were, the actions of Japan in Manchuria “do not imperil the freedom of the American people, the economic and moral future of our people. I do not propose ever to sacrifice American life for anything short of this. If that were not enough reason, to go to war means a long struggle at a time when civilization is weak enough. To win such a war is not solely a naval operation. We must arm and train Chinese. We would find ourselves involved in China in a fashion that would excite the suspicions of the whole world.”
It is now known that at the end of 1936 Chiang Kai-shek and the Kuom-intang united with the Chinese Communists against Japan. It was this unification, which in July 1937, precipitated the present Japanese war against China. Since this unification of the Chinese, America helped them against Japan in various ways.
The Prosecution admits that “the United States rendered aid economically and in the form of war materials to China to a degree unprecedented between non-belligerent powers and that some of her nationals fought with the Chinese against the aggression of Japan.
Aggression, I believe, is not always easily discernible. It may necessitate an enquiry into a complex situation not unmixed with law. Japan might take this participation by the United States as an act of belligerency.
International law perhaps does not take cognizance of the efforts or desires of the country that seeks to participate in a contest and yet remain at peace. If it will participate as a supporter of a favoured belligerent, international law decrees that it does so squarely as a belligerent and not as a neutral.
Perhaps the plea of the United States Government would have been that there was yet no war between China and Japan as neither party declared it to be so. But the Prosecution may not be allowed to characterize this hostility as war for one purpose and not war for the purpose of justifying the United States’ action in relation to it.
I do not know whether the United States’ authorities would have extended their plea of self-defense to this action. I have already referred to the very wide view of self-defense entertained by the then President, Roosevelt. According to him, “attack” “begins by the domination of any base which menaces our security—North or South” and “we have to relate it to the lightning speed of modern warfare”. The occupied base “may be thousands of miles away from our own shores”.
“The American Government must, of necessity, decide at which point any threat of attack against this hemisphere has begun, and to make their stand when that point has been reached." “Modern techniques of warfare” have thus extended the scope of self-defense, "it would be suicide to wait until the enemy is in our front yard.” “It is stupid to wait until a probable enemy has gained a foothold from which to attack. Old-fashioned common-sense calls for the use of a strategy which will prevent such an enemy from gaining a foothold in the first place."
Whether or not we accept this definition of self-defense, this at least represents the honest view of a statesman of very high position. This should help us at least in determining the bona fides or otherwise of statesmen and politicians of other countries if they professed to have taken similar view of self-defense, though that country might have been worsted in the resultant war. We shall come to this later. Here, at this stage, we are only concerned with the question as to how to view the action taken by the United States in helping China against Japan. If it was an act of belligerency, it does not matter whether it was aggressive or defensive, the two countries would no longer, in the eye of law, be at peace. It was not an act of belligerency only if there was no war between China and Japan..
We shall proceed on the footing that these were not acts of belligerency so as to disturb the peaceful relation between the United States and Japan at this stage.
After a series of diplomatic moves, the United States began to take measures, just short of war, against Japan. In July 1938, it laid a “moral embargo” on the export of aircraft to Japan. In July 1939, after the introduction of Senator Vandenberg’s resolution, Secretary Hull served notice that the commercial treaty of 1911 would expire at the end of six months. In the summer of 1940 the United States began to impose export restrictions which, though they were also designed to support the American armament program, brought a large part of their exports to Japan under control. In June 1941 an American political adviser was appointed by General Chiang Kai-shek; Americans were sent to reorganize traffic on the Burma Road; American aviators under General Chennault were allowed to resign from the United States ’ armed forces and to volunteer with the Chinese Army. In August 1941 an American military mission under Brigadier General John Magruder was sent to China.
On July 26, 1941, the United States froze Japanese assets in the United States for the purpose of bringing all transactions with Japan under the control of the government.
This was declaration of economic war and certainly was not a neutral behaviour. Along with the other economic and military measures taken at the same time by Australia, the Netherlands, and Great Britain, IT WAS WHAT THE Japanese called it: an "anti-Japanese encirclement policy".
Accused SHIMADA gave us an account of these happenings and their effect on the Japanese mind. He said:
“On October 23rd, before any liaison meeting had been called, a ceremony for the war-dead was held at the Yasukuni Shrine. TOJO called and suggested that I appear ten minutes earlier than scheduled. This I did and he then told me he was planning to call the first Liaison Conference that day and reiterated his firm resolve to commence the discussion of negotiations with America from a clean slate and to explore deeply into the maximum concessions Japan could afford to make to the United States.
“Thus I did not have the impression that I was joining a war cabinet under which the nation would be plunged into the bitter and tragic struggle that
followed, but rather I believed it was an appointment in a government which, by its very military strength, control and attitude would seek to exhaust the last possibilities in a peaceful effort to settle the grave international dispute.
“Liaison Conferences began on October 23rd with all present exhibiting confidence that matters could be settled by negotiations. Everyone, moreover, was wholeheartedly in favour of peace, but the question was how to secure it. Long and continuous meetings were held.
“In the period between the Liaison Conferences and the Imperial Conferences of November 5th, 1941, I recall that all my thoughts were focused on the following two problems:
“l. How best to ease the most difficult conditions of withdrawal of troops from abroad and to reconcile this fact with the views of the Army Section of the Imperial General Headquarters.
“2. What were the greatest possible concessions that Japan could afford to make in its endeavour to reach an understanding with the United States? The greatest difficulty concerned the withdrawal of troops from China and French Indo-China. I studied the issue deeply. I ascertained the general sentiment in naval circles, fully observed the thinking of other government members and the trend of public opinion at the time. Since the navy had opposed and had never attached a strong interpretation to the Tri-partitie Pact, I did not feel that that was a problem incapable of solution if a meeting of the minds could be achieved as to the other issues. Regardless of how Japan found itself in such a perplexing international situation, my consideration of the questions was from the approach of the present. The best solution, therefore, was a compromise with the United States and Great Britain with each side giving ground. Consequently, I directed my efforts along this line of action in a sincere attempt to avoid the possible tragic effect of hostilities.
“There was a strong prevailing opinion that matters had developed so far as to make it physically impossible to withdraw all of our forces from China and that it would have been a psychological blow which would stun the Japanese people. It was argued that it would have amounted to a victory for China over Japan and would have raised the prestige and standing of the U- nited States and Great Britain in the Far East, thereby relegating Japan to a position of being dependent upon these powers for its economic existence and position as a world power. Therefore, my thinking at that time was that it would be advisable to effect a compromise by a strategic withdrawal of our forces over a period of time from China proper and to effect an immediate withdrawal from French Indo-China if this could be correlated with the opposition to such a step. There was no doubt that Japan then would be making deep concessions which had not been possible to make at the time of the Third KONOYE Cabinet.
“On November 5th at an Imperial Conference a decision was made to put into effect preparations for war while at the same time steadfastly maintaining
our efforts toward peace through diplomacy. This was not inconsistent reasoning considering the plight of Japan at that time. The Allies had effected an economic encirclement of Japan with a result more telling than we dared admit to the world. We viewed with alarm the increasing armaments of the United States and could not reason that such military steps were taken in contemplation of war with Germany alone. The American Pacific Fleet had long before moved from its west coast base to Hawaii and there stood as a threat of Japan. The United States policy toward Japan had been strict and unsympathetic, revealing a determination to enforce their demands without compromise. The American military and economic aid to China had aroused the bitterest of feeling among the Japanese people. The Allied Powers had carried on military conferences which were pointedly directed against Japan. It was a tight, tense and trapped feeling that Japan had at that time.
“(b) Considering these fact, there were two solutions open to Japan. One being to relieve the over-all situation through diplomacy, hoping that a give and take policy on the part of the United States and Japan would answer the problems. The other was to overcome by our own power the actual and impending difficulties caused by the Allied encirclement. At all times we considered this last measure to be purely defensive and to be adopted only as a last resort. I never entertained a doubt that Japan or any nation had the sovereign right to act in self-preservation and to determine for herself what accumulation of events would entitle her to exercise that right. The government, working in conjunction with the High Command, studied the situation seriously. Not a single member of either group wanted war with the United States and Great Britain. The military men knew too well that Japan had on its hands the China Affair of over four years duration and which promised no hope of being successfully terminated. Therefore, to reason that we would voluntarily incur additional hostilities with such powers as the United States and Great Britain would be to attribute to us unthinkably juvenile military reasoning.”
” (c) The Government had been carefully considering the maximum amount of concessions that could be made and was exerting every effort to
reach an agreement with the United States. On the other hand, the High Command was faced with the problem of being called upon to carry out its function if peace negotiations failed. Their situation was simply a practical one. The High Command argued that the Navy had approximately a two years supply of oil on hand. There was no more coming in. The civilian oil could not have lasted more than six months. With the advent of December, northeasterly monsoons would blow with force in the Formosan Straits, the Philippines and Malaya areas rendering military operations difficult. They charged that if forced to wait until the following spring they would be unable to risk a naval fight if called upon to do so by the government because of the steadily decreasing oil supply.
“(d) It was in this setting that the High Command revealed its position at the Imperial Conference of November 5th and argued that if diplomatic negotiations failed and they were called upon to go into action it would have to be a step taken by early winter or they would be unable to act at all. It was this, in an atmosphere of growing desperation brought on by the factors which I have described, that caused the government to take detailed steps for war even though they hoped for and still felt peace possible through negotiations.
“I was not a statesman nor a diplomat but I tried to borrow upon all of the skill and reasoning I possessed to seek a solution. It was in this mixed atmosphere of doubt, hope, fear and speculation that the Hull Note of November 26 was received.
“(b) This was a jarring blow. It was my prayer that the United States would have viewed whatever concessions we had made as a sincere effort to avoid war and would attempt to meet us half way thereby saving the whole situation. Here was a harsh reply from the United States Government unyielding and unbending. It contained no recognition of the endeavours we had made toward concessions in the negotiations. There were no members of the Cabinet nor responsible officials of the General Staff who advocated acceptance of the Hull Note. The view taken was that it was impossible to do so and that this communication was an ultimatum threatening the existence of our country. The general opinion was that acceptance of the conditions of this note would be tantamount to the defeat of Japan.
“(c) No nation willingly relegates itself to a secondary position as a world power if it can help it. History to this very minute dictates that every leading power constantly seeks to preserve its rights, prestige and dignity and to this end constantly follows a policy which it deems most beneficial to itself. As a patriotic Japanese loving my country I was confronted with the question of whether or not Japan could bow to the American demands and yet preserve its standing in the world. It would have been treasonable to have advocated a step contrary to the best interests of my country.”
Here is then an account of what was happening in the Japanese mind; and certainly this is a highly probable account, if we are to judge by what we now know of the events and circumstances then happening. The account given may or may not justify the action taken by Japan. But, it must be said, it amply EXPLAINS the events that happened without any conspiracy.
It has been amply established in this case that America supported the Chinese regime at Chungking. They encouraged it and helped it to wage war against the Japanese and their Chinese puppet governments. They induced Britain and the Netherlands to join them in preparing for war with Japan. They severed economic relations and at least a week before the attack on Pearl Harbour, Mr. Hull told the British Ambassador that “the diplomatic part of their relations with Japan was virtually over and that the matter will now go to the officials of the Army and Navy”. In fact, after the embargo of July 1941 the United States was simply taking time. Both parties knew that their differences were irreconcilable. For America to begin hostility the risk was very great even in July 1941. It was by no means certain then that Russia could withstand the German attack. This risk, however, had to be balanced against the risk of China’s coming to a settlement with Japan and forming a Sino-Japanese combination hostile to Western aspirations.
After the embargo of July 194-1 the only question was when and where Japan would strike the blow that precipitated war. Since American strength was growing, the longer they could postpone hostilities, the better. Time was working in their favour and they had every reason for wanting to gain time.
The reason why any effective embargo was not applied earlier is not that the United States was friendly towards Japan at that time. The view which prevailed was that Japan would be ruined if a complete embargo was laid down. So she would be compelled to fight. But America was not yet ready to take the risk of war with Japan. They could not take the chance of a full scale war in the Pacific until they were reasonably sure that Germany could not attack them through South America and in the Atlantic.
This is what the evidence in this case seems to establish beyond all reasonable doubt. At any rate this was one possible and reasonable way of viewing the situation. Even the American Statesmen and Army men of high position did not fail to see this and no one was in doubt as to the possible policy which Japan could thereby be compelled to adopt.
The prosecution placed much reliance on the Pact of Paris of 1928, the Nine-Power Treaty of Washington of 1922 and the Four-Power treaty of Washington of 1921 in condemning the conduct of Japan and in justification of the steps taken by the prosecuting countries. We are not concerned here with the question of justification. We are now seeking an explanation of the happening. Yet we may just turn our eyes to see in what relation these pacts and treaties would stand so as to justify the DESIGNED CONCERTED ACTION ON THE PART OF THESE POWERS.
Regarding the Pact of Paris of 1928 Mr. Cheney Hyde says: “Honeycombed as it is with reservations, and purporting, according to its distinguished authors, not to have reference to wars waged on grounds of defense, a breach of the Pact is not easy to establish. To conclude, for example, the embarking on war is a breach, calls for a decision based upon a complicated appraisal of facts and law, which in a particular case it may be highly difficult to reach correctly. The Pact contemplates no arrangement for a hearing upon, or investigation of, the charge that the waging of a particular war constitutes a breach. Moreover, there is no provision to safeguard the parties which, after determining that a breach has taken'place, proceed to take sides and penalize the offender. THE ARRANGEMENT GIVES NO FREEDOM TO MODIFY NEUTRAL OBLIGATIONS BY SUCH PROCESSES. Hence the group of states that does so, and EMPLOYS THE BOYCOTT as an instrument of repression, places itself legally in a distinctly vulnerable position. As it stands, therefore, the Briand- Kellogg Pact does not lend itself to the employment of the boycott even when there is reason to conclude that its provisions are disregarded.
“The Nine-Power Treaty of 1922 also contains no scheme for the penalization of a contracting Power that flouts the arrangement and proceeds to deal with China in a forbidden way. I have discussed the position of the parties in relation to this treaty of Washington elsewhere.
“The Four-Power Treaty of 1921 relating to the insular possessions of the contracting Powers and their insular dominions in the Pacific, envisions a plan that is significant. “It is provided in substance (in Articles I and II) that if a controversy between any of the parties on certain questions, invoking the “rights” of the parties is not satisfactorily settled by diplomacy, and is “likely to affect the harmonious accord now happily subsisting between them, the other contracting party shall be invited to a “joint conference” to which the whole subject shall be referred for consideration and adjustment. Moreover, if those “rights” are threatened by “aggressive action of any other Power”, the contracting parties agree to communicate with each other fully and frankly, in order to arrive at an understanding as to the most efficient measures to be taken, jointly or separately, to meet the exigencies of the particular situation. There is no plan of penalizing a party to the treaty, as by a boycott ; and no definite scheme of common defensive action against an outside state not a party to the arrangement."
As has already been pointed out, the employment of measures like those taken by the Allied nations against Japan, then engaged in war with China, amounted to a direct participation in the conflict. Their conduct was in defiance of the theory of neutrality and of the fundamental obligations that the law of nations still imposes upon non-belligerent Powers. By saying this, I am not questioning their policy and condemning the steps taken by them in helping China against the Japanese action. All that I want to say here is that, justly or unjustly, rightly or wrongly, the Allied Nations had already participated in the conflict by these actions and any hostile measures taken against them by Japan THEREAFTER would not be “aggressive".
Anyway, these facts sufficiently explain the subsequent developments leading to the attack on Pearl Harbour without there being any conspiracy of the kind alleged in the indictment. The evidence convinces me that Japan tried her utmost to avoid any clash with America, but was driven by the circumstances that gradually developed to the fatal steps taken by her.
The evidence does not entitle us to characterize the Japanese attack as a sudden, unexpected, treacherous act committed while relations between the two countries were peaceful. We have seen to what extent the United States was at peace with Japan, and how she was actually engaged in a peace conference with Japan’s envoys. There was no treachery on the part of Japan in this respect. It does not matter whether there was any maneuvering anywhere to make Japan commit the first overt act.
It remains only to consider the cumulative effect of the entire evidence led before us so far as this question of over-all conspiracy is concerned.
I would again emphasize that, for our present purpose, it is not for us to see whether or not the events and their spread could be JUSTIFIED. We are now only to see whether the happenings could be EXPLAINED otherwise than by the existence of a conspiracy or design of the character specified in Count 1 of the indictment.
As I have already pointed out, there is no direct evidence of this conspiracy or design. The factum of this alleged conspiracy, design or plan has not been attested to directly by any witness, thing, or document. By evidence the prosecution has sought to establish certain intermediate facts which, according to it, are sufficiently proximate to the principal fact to be proved, so as to be receivable as evidentiary of it. The evidentiary facts thus brought in are only of presumptive value; the connection between them and the principal fact to be proved is not of any necessary consequence of the laws of nature; their connection is only such as to make the inference of the principal fact a probable one from these evidentiary facts.
Absolute certainty amounting to demonstration is seldom to be had in the affairs of life. We are, therefore, obliged to act on degrees of probability which may fall short of certainty. But the degree of such probability must be so high as to justify one in regarding it as certainty. Conjecture or suspicion must not be confused with this probability. We must not start with a pre-oc- cupied mind. It will be a very valuable aid to recall the warning words of Baron Alderson where he said: “ the mind was apt to take a pleasure in adopting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete”.
The evidentiary facts relied upon by the prosecution must have such a bearing upon the principal fact as would make them inconsistent with any result other than the truth of the factum probandum.
I have considered above the several evidentiary facts relied on by the prosecution as leading to the establishment of the conspiracy, design or plan as alleged in Count 1 of the indictment and have shown how they could be well explained without any suh conspiracy, design or plan.
It may be contended that although each event may thus be explained away, they all taken together can best be explained only by the existence of such an over-all conspiracy, design or plan.
In my opinion, that will not be the effect of the evidence.
But even assuming that that would be the case, there is a big assumption involved in this approach, and, in my opinion, thereby we beg the whole question. Why should we assume that all these events had one, single determining cause? If each event is completely explained otherwise, why should we think of connecting it with another at all, or adapting them to one another?
Perhaps in doing this we will only be entertaining our mind with the pleasure which Baron Alderson thinks it is apt to seek.
Even if we are to find out any single cause, we are not necessarily driven to the alleged conspiracy. Foreign policy of no nation in the world indicates a conspiracy. Even when several nations form themselves into a group, and adopt a particular policy against any particular ideology prevailing somewhere in the international society, we do not characterize this as conspiracy. Whatever that be, circumstances certainly developed in such a way during the relevant period as to lead Japan to adopt certain policies in her foreign relations, which as a matter of fact she did adopt from time to time.
I have already indicated on several occasions how several diverse factors of diverse origin influenced the development of Japan’s Manchurian policy, policy towards the rest of China and foreign policy in general. I have noticed in that connection that even the resumption of the so-called positive policy in respect of Manchuria was not of conspiratorial origin. The Lytton Commission itself mentioned several factors as preparing the way for the resumption of that policy. In deciding upon their policy, from time to time, the responsible statesmen of Japan could not and did not ignore the requirements and difficulties of their people as understood by them, and these must have operated as the determining factors. It is easy to impute particular motives to those controlling the foreign policy of any state. But such responsible statesmen are not always actuated by mere sinister design. Even in the case of the statesmen of a state which we do not like we must not forget that their functions involved responsibility to the people of their nation. As I have already noticed, these statesmen may not afford to ignore any difficulty even though such difficulties might have been their own creation or the creation of their predecessor. Even such origin of the difficulty would not make their policy a conspiracy when such policy is adopted to face such difficulty.
I would again emphasize here that it is immaterial for our present purpose to see whether any policy adopted at any particular time, or any action taken by Japan pursuant to that policy, was justifiable in law; perhaps it was not. All that we are concerned with here is to see if the circumstances can explain the adaptation of the policy or the action without the existence of the alleged conspiracy.
I believe I have already given enough materials in the foregoing pages of this judgment to satisfy any but a pre-occupied mind that these events happened without the alleged conspiracy. The statesmen, diplomats and politicians of Japan were perhaps wrong, and perhaps they misled themselves. But they were not conspirators. They did not conspire.
To appreciate what happened, it is only just to see the events by putting them in their proper perspective. We should not avoid examining the whole of the circumstances, political and economic, that led up to these events. This is why I had to refer to matters like the Britanocentric economic world order, the diplomatic maneuvers at Washington, the development of communism and the world opinion of the Soviet policy, the internal condition of China, the China policy and practice of other nations and the internal condition of Japan from time to time.
The Prosecution traces the conspiracy from at least the plotting of Chang Tso-lin’s murder, which event took place in 1928. I have shown above why I could not accept the story that this murder was planned by the Japanese or that the incident had anything to do with the subsequent Manchurian Incident. As I have said already, the incident remains shrouded in mystery as before. At any rate, it remains an isolated incident without any connection whatsoever with any program planned or designed for the conspiracy with which we are concerned in this case. None of the accused could in any way be connected with this incident. Of course, it was not even the case of the Prosecution that either the then Government of Japan or any member of that government had anything to do with that incident. It is not even the Prosecution case that the then policy of the Japanese Government would be consistent with this murder or that the murder was calculated in any way to further that policy.
We may view the Manchurian Incident in two parts, namely ( 1 ) the Mukden Incident of September 18, 1931, itself and (2) the subsequent development in Manchuria following this incident.
I have carefully examined the Prosecution case that the Mukden Incident of September 18, 1931 was planned by the Japanese, and have given my reason why I could not accept that case. Circumstances no doubt raise a suspicion against Japan. It seems that even at the time of the Incident, the Japanese were suspected of having planned the Incident. There were rumours both before and after the Incident about Japanese involvement in it. I have carefully considered every item of the evidence that could be placed before us in this respect, including such rumours, and have recorded the result of my examination of that evidence. I have already said why I still feel we shall not be entitled to go beyond the report of the Lytton Commission. At any rate, even assuming that the bombing of the railway line was planned by the Japanese, the Commission did not exclude the hypothesis that the officers on the spot might have thought that they were acting in self-defense.
We do not yet know who were the conspirators who might have planned this incident. I have examined the evidence adduced on this point and have explained how the utmost which this evidence might be said to indicate was that some young officers of the Kwantung Army were the then conspirators. We do not know who these young officers were. Of the accused, only DOHI- HARA, HASHIMOTO and ITAGAKI could be named in this connection. I have explained why I could not accept that evidence.
We must remember again that it is not the Prosecution case that the then Government of Japan as such had anything to do with this incident. The only member of the Cabinet who could be named in this connection is accused MI- NAMI. I have examined the evidence and have explained why I could not accept that case of the Prosecution.
The Mukden Incident led to the subsequent developments in Manchuria leading to the formation of Manchukuo. This does not, in my opinion, indicate any conspiracy even for the occupation of Manchuria, much less for the domination of the whole world. I have explained why I say this.
A formidable array of sinister events was placed before us in this connection, beginning with the murder of Chang Tso-Lin and coming up to the fall of the Wakatsuki Cabinet. These are no doubt sinister incidents but they are of no significance so far as the matter under our consideration is concerned.
Some evidence has been given as to the views entertained in Japan about Manchuria. These views were being propagated in Japan through organized propaganda. There was nothing sinister in this propaganda. It was done exactly in the same peaceful manner as is usually done in other countries. Anyone entertaining any opinion is entitled to spread his opinion to the public and this is all that was done in this respect in Japan. If he succeeded in winning the public opinion in favour of his views, it is to his credit that he succeeded in doing so. There is absolutely no allegation of any illicit means adopted for this purpose. The Army is named in this connection perhaps to insinuate force. But there is absolutely no evidence of any force, fraud or coercion in this respect.
The public opinion thus formed might have been a factor in determining or in giving shape to the subsequent government policy. But this was only one of the factors. I have already indicated some of the factors then existing in Japanese life, which went a great way in moulding the then Japanese China policy. I must say here that even the public opinion was not the result of mere propaganda by Dr. OKAWA and his group. If his opinion was so easily acceptable to the public, it was because the field was already ready for its acceptance by reason of other factors working oh Japanese life. I have already examined this aspect of the case, and, in my opinion, the development both in policy and in action was the result of several factors working in synergy and synchronism. There was no conspiracy even for what happened in respect of Manchuria, and the happening was not the result of any such conspiracy.
I have shown how gradually circumstances were developing, leading to the events that took place. Any particular incident in connection with these subsequent developments might have been designed for the accomplishment of any particular object which any particular group of persons might have thought of realizing in view of the then circumstances. But, simply because there were designs here and there in the course of these developments, it does not follow that the whole development was also the result of any design. In my opinion, the whole story of the over-all conspiracy is a preposterous one.
Before leaving this subject, I would like to draw attention to one very significant fact, which seems to have been overlooked by the Prosecution altogether while it likened the present case to the case of Hitlerite Germany. We now know what happened in Germany and how the public of Germany stood to the Hitler group. In Japan the public opinion always remained a powerful factor. It could always determine the fate of the Cabinet. If public opinion had to be shaped, it was done in a perfectly legitimate manner. Nothing could be placed before us showing that any person or any group of persons could in any way stifle this public opinion. Many Japanese elder statesmen, politicians, public men and individuals have given evidence in this case; but we have never heard anything like what, we Eire told, happened, in Germany under Hitler regime. The evidence of these witnesses, who once occupied very high and influential positions in Japan, and consequently in the whole world, discloses how the conduct of the persons under trial was never considered by such powerful groups among their own countrymen as anything but patriotic. Whatever they did, they did out of pure patriotic motives.
TOJO and his group, who are likened by the Prosecution to the Hitler group, are now not in power. They are prisoners before us. Those who appeared before us to give evidence in this case certainly were no longer in terror of these persons. This group might have done many wrong things; but, so far as the public of Japan is concerned, certainly by their behaviour towards them they did not succeed in reducing them to the position of terror-stricken tools without any free thinking or free expression. The population of Japan was not enslaved as in Hitler’s Germany. Members of the public retained complete freedom in respect of their own creeds, beliefs and behaviour and, however influenced by legitimate propaganda, these still corresponded to the real nature of the citizen. Any influence exercised on their views is not fundamentally different from what is done even in other peace-loving, democratic countries.
The social techniques which aim at influencing human behaviour and which may act as a powerful means of social control are being availed of everywhere in the world. Perhaps it is correct to say that the main point about these improved social techniques is not only that they are highly efficient, but that this very same efficiency fosters minority rule. The most important thing about these modern techniques is that they tend to foster centralization. It is true that the new science of human behaviour brings into the service of the government a knowledge of the human mind, which can either be exploited in the direction of greater efficiency or made into an instrument playing on mass emotions. This “knowledge of the human mind”, however, is being utilized everywhere by every government. In this sense, nowhere in the world can public opinion be said to be the absolutely independent and free opinion of the individual members. If it is an evil, it is an evil of the day.
Public opinion in Japan during this period might have been influenced by propaganda but there was nothing unusual, illicit or criminal in the means adopted for this purpose. There was no dictator in Japan. Neither any particular individual nor any group of individuals did ever emerge as dictator, rising above all democratic control. Not a single decision taken by the government could be said to be the decision of a dictator or of a dictatorial group. The evidence discloses how every measure suggested and every step taken was the result of careful and anxious deliberations of the persons responsible for the management of the affairs of the state and how, in arriving at these decisions, they were always alive to the public opinion and public interest as understood by them.
Keeping everything in view, and on a careful consideration of the entire evidence of the case, I have arrived at the conclusion:
1. That no conspiracy either “ of a comprehensive character and of a continuing nature”, or of any other character and nature was ever formed, existed or operated during the period from January 1, 1928 to September 2, 1945 or during any other period;
2. That neither the object and purpose of any such conspiracy or design for domination of the territories, as described in the indictment, nor any design to secure such domination by war has been established by evidence in this case;
3. That none of the defendants has been proved to have been members of any such conspiracy at any time.
I may add here a few words by way of explanation of the method adopted by me in the evaluation of the evidence adduced in the case. I have already pointed out how we had to refrain from adopting any restrictive rules with regard to the admissibility of evidence and how as a result a large quantity of materials of dubious value might have crept in. Under the Charter we were not bound to adhere to any strict judicial rules of evidence, and from the very character of the proceedings before us perhaps it was not possible to adopt any such restrictive rules. But this relaxation of the rule as to admissibility certainly did not imply similar relaxation in determining the probative force of such evidence. Judges of international tribunals are often accused of “having sought to escape from this dilemma by admitting all evidence offered and then declining to reveal what was made of it in reaching the decision” . This would hardly be occasion for surprise in the present case in view of the volume and character of the evidence we have to sift. I have however tried my best to reveal as far as possible what I have made of the evidence admitted in reaching my decision.
I have given above my reading of the evidence relating to the charge of conspiracy. I am, however, of opinion that conspiracy by itself is not at all a crime in international life.
In the indictment in this case conspiracy has been allotted a very prominent place and has, by itself, been introduced as a crime.
Lord Wright in his article on “War Crimes under International Law” seems to have hinted at conspiracy as constituting a crime in international life. He said:
“War crimes are generally of a mass or multiple character. At one end are the devisers, or organizers, or originators who would, in many cases constitute a criminal conspiracy; at the bottom end are the actual perpetrators.”
What Lord Wright says here does not necessarily support the view that conspiracy by itself, apart from the actual perpetration of the act, constitutes a crime in the international system. All that he says is that when there has been a war there may be these two categories of criminals in relation to it.
The prosecution, however, in its indictment, charges the Japanese leaders with the commission of a crime of conspiracy apart from the actual perpetration of the conspired act, asserting that the said crime was committed as soon as the conspiracy was completed.
According to the prosecution, the Japanese war leaders became guilty of this crime even prior to the commission of the act itself, as soon as they entered into an understanding either among themselves, or with the leaders of I- taly and Germany, to commit any of the acts alleged in the indictment.
In the facts placed before us, excepting in the case of Soviet Russia, there is no other instance where the planned war was not actually waged.
In the case of the Soviet Russia, though the Indictment brings in the two border incidents as instances of actual waging of war, the case substantially lies only in bare conspiracy.
In conferring jurisdiction on the Tribunal, the Charter in Article 5 says:
" 5. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility;
“a. Crimes against peace; namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
“c. Crimes against humanity; . . . Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan."
Count 1 of the indictment stands thus:
"All the accused, together with other persons, .... participated as leaders, organizers, instigators or accomplices in the formulation or execution of a common plan or conspiracy, and are responsible for all acts performed by any person in execution of such plan.
"The object of such plan or conspiracy was that Japan should secure . . . domination of East Asia . . . and for that purpose they conspired that Japan should alone or in combination with other countries . . . wage declared or undeclared war or wars of aggression, and war or wars in violation of international law . . . against any country or countries which might oppose their purpose.
Count 1 contains the charge of over-all conspiracy. It is apparent that it is framed in the very language of Article 5-C of the Charter.
Count 2 charges similar planning against Manchuria; Count 3, against rest of China; Count 4, against the United States, the British Commonwealth of Nations etc. including the U. S. S. R. and Count 5, the whole world. Counts 6 to 17 speak of planning and preparing wars of aggression against
A careful analysis of the charge would show that the requirements of the offense contemplated therein are the following:
1. The persons charged must be leaders, organizers, instigators or accomplices in the formulation or execution of the plan;
2. The object of the plan was that Japan should secure the military, naval, political and economic domination of the countries named;
3. The persons who participated as leaders, etc., in the formulation or execution of the plan must also be shown to have conspired that, for the purpose of the above domination, Japan should wage declared or undeclared war;
4. That such war need not be against the country sought to be dominated but against any country which might oppose their purpose.
The fourth item in the requirements seems to be a little too widely expressed in the count. As the war to be waged must be war or wars of aggression and war or wars in violation of international law, treaties, agreements and assurances, it may be that the idea was that “any country” was intended to mean any country standing in such a relation to the question of particular domination that war against it would be a war of the kind named above. Thus, for example, by reason of the Treaty of Washington, the Signatory Powers were to maintain the integrity of China and respect her sovereignty. If Japan wanted any domination of China which would violate her treaty obligation, any of the Signatory Powers might come and oppose such domination, though China herself might not oppose. If Japan planned to wage war against such opposing power, the action would come under Count 1 though China might not have opposed it or might even have supported it.
The Count simply speaks of the leaders conspiring for the purpose of domination that Japan should wage war against any country. It is comprehensive enough to cover a case where no war, as a matter of fact, is waged. The substantive portion of the charge seeks to make the persons charged responsible for all acts performed by any person in execution of such plan. Acts performed in execution would not necessarily imply that the war is to be actually waged. The execution of the plan may take place in part even before the actual waging of the war.
In the Nuremberg Charter Article 6 contained the corresponding provisions.
Count One of the Nuremberg indictment related to “ the common plan or conspiracy” and charged that “all the defendants . . . participated as leaders .... in the formulation or execution of a common plan or conspiracy to commit .... crimes against peace, war crimes, and crimes against humanity, as defined in the Charter.”
The Nuremberg Tribunal held that the Charter did “not define as a separate crime any conspiracy except the one to commit acts of aggressive war”. Referring to the clause “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan”, that Tribunal opined that “these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in the common plan." The Tribunal, therefore, disregarded “the charges in Count one that the defendants conspired to commit war crimes and crimes against humanity” and confined its consideration only to “the common plan to prepare, initiate and wage aggressive war”.
The prosecution in the case before us accepted this construction of the Nuremberg Tribunal as applicable to Article 5 of the present Charter. Consequently the charge of conspiracy must be taken as limited to “the common plan to prepare, initiate and wage aggressive war .
As I have pointed out above, in view of the charges relating to the U. S. S. R., the question whether conspiracy is a crime in international law will not be a mere academic one.
The Prosecution invites us to hold:
1. That bare conspiracy has been listed as a crime in the Charter;
2. That the Charter in this respect is, and purports to be, merely declaratory of international law as it existed from at least 1928 onwards ;
3. That the Tribunal is to examine this proposition and to base its judgment on its own decision in this respect;
4. That the provisions of the Charter, with regard to conspiracy, planning, preparation, accessories and the common responsibility of those engaged in a common plan, represent the general principles of law recognized by all civilized nations;
(a) The general principles of law recognized by civilized nations being one of the sources of international law, these provisions are themselves part of international law.
In the alternative, the Prosecution urges that:
1. The provisions in the Charter are merely forms of charge and of proof of responsibility:
(a) As such, these are within the power of the Supreme Commander to lay down.
2. There is important distinction between conspiracy as a separate crime, and conspiracy as the method of proof of a crime alleged to have been committed by several persons jointly;
( a ) The principles are similar, but the application of them is different ;
( b ) These principles are applied to a joint crime, even if it is not one, the conspiracy to commit which, is a separate crime.
As I have pointed out already, here are grave questions for our consideration. Keeping in view the character of the present-day international life, the propositions must be very carefully examined, and in so doing, we must keep distinct the following considerations:
1. Whether conspiracy is crime in international law, at least from 1928 as asserted by the Prosecution;
2 . If not, whether we can accept the definition of the Charter as binding on us;
3. Whether the definition in the Charter really gives a substantive law or only a rule of procedure.
I would, first of all, take up the question whether it is correct to say that conspiracy has been a crime in international law as it existed from at least 1928 onwards.
The Prosecution approach to the question may be put thus:
1. One of the sources of international law is “the general principles of law recognized by civilized nations” ;
2. Conspiracy is recognized by civilized nations as crime in their national systems;
3. Therefore, it must be taken that conspiracy has been a crime in international law.
I am afraid I cannot accept this submission of the Prosecution.
The prosecution names “the general principles of law recognized by civilized nations” as one of the sources of international law, and bases its whole argument on this statement. It relies on “the Statute of the Permanent Court of International Justice, 1936”, for this purpose and refers to Article 38, paragraph 3, of the Statute in support of the proposition.
Article 38 of that Statute is as follows:
“The Court shall apply—
“1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
“2. International custom, as evidence of a general practice accepted as law;
“ 3. The general principles of law recognized by civilized nations;
“4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
“This provision shall not prejudice the power of the Court to decide a case ex etiequo et bono, if the parties agree thereto.”
The Permanent Court of International Justice was established pursuant to Article 14 of the Covenant of the League of Nations.
Article 14 of the Covenant stood thus:
“The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a permanent court of international justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.”
It was pointed out by the United States when the Covenant was presented for ratification, that there was in it no provision for a judicial settlement of differences through which a nation might assert its legal rights in lieu of war, and that there was in the Covenant no declaration of the existence of any right which could be successfully vindicated against an aggressor by any other means than war.
The proposal embodied in Article 14 of the Covenant is clearly less committed to the conception of imperative justice than the Hague Conference of 1907. In that conference it was in effect conceded that an international court should have jurisdiction over all justiciable cases, a previous agreement being made as to what disputes should be recognized as having this character. Article 14 on the contrary attempts no discrimination between justiciable and non- jus ticiable differences, limiting the jurisdiction of the court to any dispute of an international character which the parties thereto may submit to it.
Leaving aside this Permanent Court of International Justice for a moment, we should remember that international judicial proceedings are always unique in that the parties create the tribunal before which their case is to be tried and select its judges. The nature of the authority of the tribunal and the extent of its jurisdiction are defined and fixed by the parties. It is the consent of the parties that gives life to the tribunal. In the arbitral agreement creating the tribunal, the question to be decided is stated, the jurisdiction of the tribunal is defined, and the extent of its power in matters of procedure is delimited.
The Statute of Permanent Court of International Justice is really in the nature of such arbitral agreement.
Article 38 of the statute says that the court shall apply “the general principles of law recognized by civilized nations ”. In my opinion it simply amounts to a common consent that such general principles shall be applicable for the purposes for which the court is being established. From this common consent we cannot arrive at the conclusion that “the general principles of law recognized by civilized nations” in every sphere of law are adopted by the consenting nations for all the purposes of international life.
As I have already pointed out, the basis of the international law is the common consent of the member states of the family of nations. The common consent is the essential source of such law and it is essential in order to vest any rule with the character of law. The question, therefore, resolves itself into this: what is the extent to which the implication of the consent of nations conveyed through this clause in the Statute would carry us?
On the face of it, such consent cannot be implied beyond the purposes of the Statute.
It may be remembered that the advisory committee of the jurists which met at the Hague to prepare this statute expressed a “voeu” for the establishment of international court of criminal justice. But this was not then adopted by the nations and has not yet been adopted.
I have shown how in the present state of international life introduction of criminal law in it has been considered at least inexpedient.
It may be pertinent to notice in this connection that even in the Charter of the United Nations, though one of the purposes of the United Nations is expressed to be “to maintain international peace and security, and to that end: to take effective collective 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”, there is no provision even implying any individual criminal responsibility. Neither this Charter nor the Statute of the Permanent Court of International Justice did conceive of any measure to govern the conduct of individuals.
Remembering that international law is applied primarily to states in their relations inter se, and that it creates rights of states and imposes duties upon them vis-a-vis the states, its content must be determined accordingly. If and when international law would be conceived to govern the conduct of individuals, it may become less difficult to project an international penal law.
I have already pointed out where the conception of piracy and the like stands in the international legal system. Despite the employment of such analogies, no authoritative attempt has been made to extend international law to cover the condemned and forbidden conduct of individuals. As I have already quoted from Judge Manley O. Hudson: “Whatever course of development may be imminent with reference to political organization, the time is hardly ripe for the extension of international law to include judicial process for condemning and punishing acts either of states or of individuals.
The instances of criminal international law affecting individuals are all cases where the act in question is the act of the individual on his own behalf, committed on high seas or in connection with international property. Most of these cases are expressly provided for. The selection of these crimes as the object of the provisions of international convention was necessitated, not by theoretical considerations concerning the nature of international crime, but by various political motives; the interest of one country or a group of countries in the combat against a given crime, material facilities for the organization of such combat, and other reasons of that nature.
The concept of an international offense as a particular kind of infringement upon the sphere of international relations has hitherto been absent from the international system. Those that have hitherto been taken cognizance of as crime in the international system are really individual crimes. “Because of their juridic nature and because of their factual significance, conventions for certain common criminal offenses appear to be one of the various forms of reciprocal support for criminal law by governments having in view a realistic combat against crime. This reciprocal act of governments is not connected directly with the problem of international crimes."
As I have already pointed out, the conception of international criminal responsibility in international life can arise only when that life itself reaches a certain stage in its development. Before we can introduce this conception there, we must be in a position to say that that life itself is established on some peaceful basis. International crime will be an infringement of that base—a breach or violation of the peace or pax of the international community.
I have already given my view of the character of the so-called international community at least as it stood on the eve of the second World War. It was simply a co-ordinated body of several independent units and certainly was not a body of which the order or security could be said to have been provided
Keeping all this in view it may safely be asserted that the nations have not as yet considered the conditions of international life ripe enough for the transposition of principles of criminality into rules of law in international life.
I cannot therefore read into the consent conveyed through adopting the general principles for their application by the Permanent Court of International Justice, a consent to effectuate any transposition of the principles of criminal responsibility into rules of law in international life. I do not consider this as sufficiently indicative of the requisite consent for our present purpose.
The prosecution laid emphasis on the fact that the Charter, which declared conspiracy to be a crime, was created by several civilized nations and was adhered to by others. I do not see how this in any way helps the prosecution.
The prosecution says that it would be strange that the twenty-three nations involved, eighteen of which were not followers of the Anglo-American system, should sign a document defining conspiracy as a crime if that doctrine was foreign to their own legal concepts. I do not see why it should be so strange, remembering that they were laying down law not for themselves, but for the trial of the vanquished leaders. The Charter provided law, if it did so at all, only for the “major war criminals of the European Axis”. We, as a court of justice, cannot assume that the legal concepts of the authors of the Charter and of its adherents were correct. We must also remember that it was not enacted even by the lesgilatures of these civilized nations. Men of very high positions, no doubt, represented these nations; but there is nothing before us to show their juristic competence.
Coming to show that conspiracy is a concept common to most legal systems, the prosecution proceeded to analyse the Anglo-American doctrine fully, and placed the following rules as a result of that analysis:
1. That the crime of conspiracy is complete with the agreement by two or more to commit a crime AGAINST THE SECURITY OF THE STATE, whether in fact it is committed or any active steps are taken for the steps or not;
2. That the offense extends subject to the same conditions to an agreement to commit any felony;
3. Also to any misdemeanour;
4. Also to any unlawful act or any lawful end agreed to be attained by unlawful means, although not a crime if actually committed by one person alone;
5. That planning and preparation by one person to commit a crime is not by itself a crime unless it amounts to at least an attempt;
6. That a joint offender, a principal in the the second degree or an accessory before the fact, i. e., “a leader, organizer, instigator or accomplice”, may be tried and convicted as a principal, and in the absence of the person or other persons who actually committed the offense;
7. That in all cases where there is in fact a common plan or conspira
cy whether that is the crime actually charged, or one or more of the parties are charged with the substantive offense, any person who joins in it at anytime, from that moment until the moment, if any, when it comes to an end or he definitely dissociates himself from it, responsible for all acts and words of his fellow conspirators, whether known to him or not, provided that they are within the scope of the plan or conspiracy to which he has become a party, either originally or by subsequent extension with his consent.
The Prosecution then proceeded to point out which of these rules represent the general principles of law as recognized by civilized nations. It said:
1. Rules 1 and 7 are part of the law of every country concerned, including Japan.
(a) That a conspiracy to disturb the peace of the world or of a number of countries by waging wars of aggression and in breach of treaties is so closely analogous in the international sphere to the conspiracy against the security of the state in the municipal sphere.
2. As regards Rule 2, the practice of the countries varies.
3. Rules 3 and 4 are unknown to other countries, but this is academic because the Prosecution is not making any such charges.
4. Many countries do include planning or preparation as crimes apart from conspiracy, contrary to Rule 5. But as in none of the counts any individual has been charged alone, this point is also academic.
5. Rule 6 relates to a matter of procedure only. All countries recognize the persons there mentioned as criminals. But practice varies as to whether they can be charged as principals or must be separately charged.
The prosecution contended that the offenses which are here sought to be punished under the international doctrine of conspiracy, are also punishable or approximately so, besides the Anglo-American systems, in the French, German, Dutch, Spanish, Chinese, Japanese and Russian legal orders. Consequently, the prosecution urged, the doctrine of conspiracy became a rule of international law being grounded on juridical notions existing in the French, German, Japanese, Chinese and Anglo-American legal orders and on a Russian juristic philosophy.
I do not think this would be of any avail to the prosecution case unless we accept the proposition that “the general principles of law recognized by civilized nations” became a source of international law even for the purposes of introducing individual criminal responsibility in international life. I have already given my reason why I cannot accept this proposition.
The basic principle of this crime as recognized by the various national systems is that every state has a right to evolve legal institutions to suppress by force, as criminal, certain agreements for the ultimate commission of acts which are at least mala in se and irrevocably involve grave social evils. Every
state has a right to anticipate the ultimate commission of the act and suppress the combination by force.
The only general principle which these various systems will yield is that it is legitimate and expedient to evolve legal institutions for the prevention and suppression of potential crimes of certain categories. Such crimes are generally those endangering the very existence of the state.
Strictly speaking, in the present stage of the international society, there is no such organization at all whose security would attract the operation of this principle. There is no international superstate as yet. The national states are only individual members of that society occupying the position of individuals in a national state.
Even apart from these considerations, if we carefully examine the principles of the law of conspiracy as prevailing in the several civilized countries, we cannot fail to see that the essential principle underlying that law is the desirability and possibility of prevention. In my opinion, this object cannot be achieved in international life as at present constituted.
Conspiracy is fundamentally a mental offense.
The Prosecution says that in order to constitute conspiracy there must be a crossing of the line of mere meditation. The essence of the offense is the joint agreement, the joint undertaking. The crossing of the line of meditation may require some overt act. But “the act required does not amount to the dignity of the act required to sustain a conviction for an attempt to commit a crime. It is any act which is in furtherance of the conspiracy. It need not be a criminal act; it need not be an illegal act; it need not be an act of any importance ; it need not be performed by more than one of the conspirators; . . . the sole purpose of requiring the overt act is to ensure that there is sufficient evidence that a conspiracy has actually been entered into. Any single one of the thousands of acts by any one of these defendants or by any one of their coconspirators would meet the requirements of an overt act necessary to establish a conspiracy in those jurisdictions where it is required.”
Activity in the external forum is relevant for determining whether there has been a conspiracy only in so far as it establishes the existence of the internal elements sufficient to constitute the crime. The two factors of will and reason, which enter into the making of any agreement, are the starting points in any analysis of the nature of the conspiratorial agreement.
Basically conspiracy is an inchoate act for which the essential act is slight. It involves an intent to commit a further act. It is the commission of that act which the state desires to prevent’.
The essential element in the principle of the law of conspiracy is thus the desirability as also the possibility of prevention of the design contemplated by the conspirators.
Manifestly, there is grave danger where conviction and punishment can be based purely on intent. This has been recognized. The commissioners, on behalf of the Legislature of New York, in revising the conspiracy statutes of New York, in the introduction to the section which required an overt act before one could be convicted of conspiracy observed as follows:
“By a metaphysical train of reasoning, which has never been adopted in any other case in the whole criminal law, the offense of conspiracy is made to consist in the intent, in an act of the mind; and to prevent the shock to commonsense, which such a proposition would be sure to produce, the formation of this intent by the interchange of thoughts, is made itself an overt act, done in pursuance of the interchange of agreement. SURELY an opportunity for repentance should be allowed to all human beings; and he who has conspired to do a criminal act, should be encouraged to repent and abandon it. Acts and deeds are subjects of human laws; not thoughts and intents, unless accompanied by acts.”
Professor Sayre of the Harvard Law School is more outspoken in his denunciation of the doctrine of criminal conspiracy in the Anglo-American system. He says:
“Under such a principle every one who acts in co-operation with another may some day find his liberty dependent upon the innate prejudices or social bias of an unknown judge. It is the very antithesis of justice according to law.
“A doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends no strength or glory to the law; it is veritable quicksand of shifting opinion and ill considered thought.
“It is a doctrine which has proved itself the evil genius of our law wherever it has touched it. May the time not be long delayed in coming when it will be nothing more than a shadow stalking through past cases."
Thus even in national systems conspiracy as constituting a crime has not gone unchallenged. Its only justification is the prevention and suppression of potential danger. It can have no place in a community which has not as yet organized any preventive means. Even if fully discovered at the conspiracy stage, the international community, as it now stands, has no means of punishing the offense and consequendy the punishment provided in view of its potentiality is brutum fulmen. The law must wait till the potentiality becomes an actuality and then again till the favourable contingency happens, that is, till the conspirators lose the war.
On the other hand, if completed conspiracy by itself is a crime in international law, once certain parties enter into this conspiracy, there remains no scope for locus penetentiae for them. They gain nothing by desisting from further act so far as a conspiracy for aggressive war is concerned. They have already completed their offense. I do not think there is any justification for introducing such a crime in international life at the stage where it now stands.
We must also remember that in transposing the law of conspiracy in the international system we are really not seeking to prevent any dangerous combination, because, as I have shown above, such prevention is impossible at this stage of international life. The proposed extension may only give a dangerous weapon in the hands of an unscrupulous victor. Nations while making preparations for war would never think or admit that they are making such preparation for aggressive purposes. I should not repeat it here, but we have seen how statesmen in very high positions were claiming openly very wide and extensive right of self-defense. Every nation, for itself and for the nation which it likes, would take self-defense in such extensive sense, while at the same time, it would never appreciate its opponent’s similarly wide definition. In order to make aggressive war a crime in international life, it would be necessary for us to hold that whether or not a measure taken by a state was in self-defense, the decision of the state concerned would not be final.
The ultimate decision as to the lawfulness of the action claimed as taken in self-defense may not lie with the state concerned. But, in the absence of any international agency or court with compulsory jurisdiction competent to decide whether or not any right of self-defense was involved, it becomes the right of the victor to decide whether or not any right of self-defense was involved, it becomes the right of the victor to decide whether or not the vanquished resorted to war in self-defense. The application of the rule which we are now seeking to introduce will thus necessarily be in the hands of the opponent who would happen to be the victor, and who could never appreciate its defensive character. We can well imagine what may be the consequence. In my opinion, while serving no useful purpose, it would be introducing a dangerous principle in the international system, further retarding the peaceful relations in that life.
There is yet another consideration against the introduction of conspiracy as a crime in international life. The international society even now recognizes the compulsive means of settlement of differences between states. Even now it is permissible to a state to take to measures containing a certain amount of compulsion for the purpose of making another state consent to such settlement of a difference as is required by the former: See Oppenheim ’ s International Law, Chapter II. These compulsive means remain legitimate even after the Pact of Paris. “The question”, says Dr. Lauterpacht, “whether the Paris Pact by forbidding resort to war has also prohibited resort to force short of war is a controversial one. Article 2 of the Pact refers to the obligation of the contracting parties not to solve disputes by any other except padfic means; and in the Preamble the contracting parties express their conviction that ‘ all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process . In the view of some writers these provisions must be interpreted as meaning that the Pact prohibits recourse to force short of war. But the last-quoted passage refers only to changes in relations, not to the enforcement of existing legal relations; as to Article 2, it must be borne in mind that although measures of force short of war are compulsive means, they are still pacific means.”
Compulsive means are in theory and practice considered peaceable, although not amicable, means of settling international differences. I need not stop here to examine in detail the various compulsive means in contradistinction to war. All that I want to point out in this connection is that in the preparatory stages the line between the two may be very thin and a preparation ultimately to serve only the purposes of a legitimate compulsive measure may be mistaken for a preparation for war. The same outward manifestation of mind may thus be indicative of two different mental states—one of them being legitimate in international life and the other criminal, if conspiracy be introduced as a crime. While serving no practical useful purpose, the introduction of this mental crime in international life would bring with it this difficulty of ascertaining the particular criminal state of the mind.
After giving my anxious thought to the question I have come to the conclusion that “conspiracy” by itself is not yet a crime in international law.
In my view of the authority of the Charter, conspiracy will not be a crime although listed as such by the Charter, if it is not a crime in international law. As I have already pointed out, even the Prosecution in the case before us does not seem to claim that a definition of crime given in the Charter would, as such, be binding on the Tribunal. The Tribunal is invited to examine whether or not what is listed as crime in the Charter is crime in international law and to base its judgment on the result of such examination.
The Prosecution, however, contends that it was within the competence of the Supreme Commander to lay down binding rules of procedure including “forms of charge and of proof of responsibility” and that the provisions in the Charter relating to conspiracy were simply such “forms of charge and of proof of responsibility”.
I cannot accept the relevant provisions in the Charter as giving mere “forms of charge and of proof of responsibility” and consequently I need not examine the other proposition relating to the competence of the Supreme Commander.
SCOPE OF TRIBUNAL’S JURISDICTION
The first substantial objection taken by the defense to the jurisdiction of the Tribunal was that the crimes triable by this Tribunal must be limited to those commited in, or in connection with, the war which ended in the surrender on 2 September 1945. In my judgment this objection must be sustained. I have already given my reason for this decision in an earlier part of my judgment.
There, however, I pointed out that in the indictment the prosecution made the case of an over-all conspiracy in Count 1 which, if proved, might bring in all the incidents referred to in the indictment as part of the war which ended in the aforesaid surrender. The question thus ultimately became a question of fact to be
determined on the evidence in the case,
I have now examined this evidence and have come to the conclusion that the alleged over-all conspiracy has not been established thereby.
In view of this finding, and in view of my decision on the question of law involved in this objection, I am of opinion that this Tribunal would have no jurisdiction over the matters involved in counts 2, 18, 25, 26, 35, 36, 51 and 52 of the indictment, for the simple reason that the HOSTILITIES relating to these matters ceased long before the Potsdam Declaration of 26 July 1945 and the Japanese Surrender of 2 September 1945. As already pointed out by me, the crimes triable by this Tribunal must be limited to those committed in or in connection with the HOSTILITY which ended in the surrender of 2 September 1945. International law does not invest the victors with any right more extensive than this. There is nothing in the Potsdam Declaration and in the instrument of Surrender which would entitle the Supreme Commander or the Allied Powers to try and punish the vanquished for any crime committed in or in connection with any other hostility. There is nothing in the Charter that would extend its provisions to hostilities other than those ended by the Surrender.
Count 2 charges all the accused with having participated in the formulation or execution of a common plan or conspiracy being ‘ the military, naval, political and economic domination of the provinces of Liaoning, Kirin, Heilungkiang and Jehol
There is some controversy over the position of Jehol. It is a territory situated immediately outside the Great Wall, to the Northwest of Peking, which had originally formed part of Inner Mongolia, had gradually been colonized and had eventually become attached to the Province of Chihli, but was now in Manchurian hand. Before the end of December 1928, a comprehensive agreement was reached by which Nanking agreed to leave Jehol as well as Manchuria under Chang Hsueh-liang’ s administration and to give him the title of Commander of the North East Frontier Defense Force.
The question whether or not Jehol formed part of Manchuria is, however, not material for our present purposes.
According to the prosecution itself the military conquest of all Manchuria including Jehol had been completed by May 1933. On May 31, 1933, the Tangku Truce was signed, and whatever might be the position of the Sino-
Japanese dispute relating to these provinces, the actual hostility concerning them ceased.
With the signing of this truce the good relations between China and Japan were restored. The prosecution itself says that after this truce the relation between China and Japan became good for the time being. There were, no doubt, certain disturbances in the early part of 1935 but these were all compromised and settled, and on June 10, 1935, the HO-UMEZU Agreement was concluded. In both countries conciliatory notes appeared in the public utterances of leading politicians; personal contact was restored, after a long term of suspension, between General Chiang Kai-shek and the representatives in China of the Japanese Government, The Chinese Government gave evidence of a willingness to respond to Tokyo’s demands for more effective control of anti-Japanese agitation by circulating warnings to the provincial and municipal authorities to suppress movements likely to impair relations with other countries, and by having school text-books revised with a view to eliminating passages offensive to Japan. The Japanese Government for their part made a gesture of good will and paid a compliment to China by elevating their diplomatic mission to the rank of Embassy. The change took place on the 14th June, and the example was followed in the course of the next three months by Great Britain, Germany and the United States of America.
After that, the officials of the Ghiang Kai-shek Government concluded arrangements with Manchukuo with regard to customs, postal service, telegraph and railroad. In June 1935 Chiang Kai-shek promulgated the Good Neighbour Ordinance toward Japan. Mr. HIROTA, Foreign Minister of the OKADA Cabinet, negotiated with China and formulated the “HIROTA-three principles” including the recognition of the status quo in Manchuria and North China and secured the consent of the Chinese Government to discuss the details with those principles as the basis. The Soviet Union recognized Manchuria as a separate state and in the Neutrality Treaty of 1941, between Japan and the U, S. S. R., it was provided that the Soviet Union respect the territorial integrity and inviolability of Manchukuo. In my opinion the evidence given in the case fully supports the defense contention. This hostility ceased long before the surrender of 2 September 1945 and nothing in connection with that incident, except what was expressly mentioned in its terms, was within the scope of this surrender.
In my opinion, in the absence of any express reference to the contrary, the terms of the Potsdam Declaration, as also of the Surrender, must be limited to such hostilities as were being terminated by them. As I have already pointed out, a victor’s power under International law does not entitle him to sit on trial over the vanquished for all his life’s doings. Neither the Potsdam Declaration nor the deed of Surrender nor the Charter expressly covers this matter.
Count 18 charges some of the accused named therein with having initiated a war of agression etc. on or about the 18th September 1931. This is the date of the Mukden incident. For the reasons given above the charges in this count must also fail for want of jurisdiction.
Counts 25, 35 and 51 relate to the hostility between Japan and the U. S. S.R. in the area of Lake Khasan, during July and August 1938.
The evidence given in the case conclusively shows that THESE HOSTILITIES also ceased long before the Potsdam Declaration and the Surrender. It should be remembered that Japan stood in friendly diplomatic relations with the U. S.S.R. all along after this incident. The two States entered into neutrality pact after this incident and it can safely be asserted that, till the U. S. S. R. declared war on Japan on the 8th August 1945, the relations between the two countries, in the eyes of International Law, were completely friendly. In my opinion, therefore, these long past hostilities were not, and could not have been, within the contemplation of the Potsdam Declaration, the deed of Surrender and the Charter constituting this Tribunal. The evidence in this connection goes to show that even the dispute here was settled by agreement.
In my opinion, therefore, these charges should also fail for want of jurisdiction.
The same reasons apply also to counts 26, 36 and 52. These counts relate to A HOSTILITY between Japan and the Mongolian People’s Republic in the area of the Khalkhin-Gol River during the summer of 1939. This hostility also ceased long before the present Surrender. The Mongolian People’s Republic was not in war with Japan at all at the date of the Surrender or of the Potsdam Declaration. Neither the Declaration nor the Deed of Surrender expressly refers to this incident. The Mongolian People’s Republic was not a party either to the Declaration or to the deed of Surrender. The Charter also nowhere expressly refers to this incident. The Mongolian People’s Republic is not a prosecuting nation. In these circumstances I do not see how we can entertain these charges.
The charges contained in counts 2, 18, 25, 26, 35, 36, 51 and 52 therefore fail on this ground also and the accused must be acquitted of these charges.
The defense contends that, for the purposes of this trial, even war with China should be taken as commencing from the 9th of December 1941, the date of China’s declaration of war, and that consequently crimes alleged to have been committed during any prior course of the hostility would be outside the jurisdiction of this tribunal.
I believe there is not much difficulty in saying that war with China, which ended in the surrender by Japan on the 2nd of September 1945, commenced on 7 July 1937 with the Marco Polo Bridge Incident.
War is a contention between two or more States through their armed forces, for the purpose of overpowering each other. Recourse to hostilities without a previous declaration of war, or a qualified ultimatum, is forbidden. But a war can nevertheless break out without these preliminaries. A State might deliberately order hostilities to be commenced without a previous declaration of war. The armed forces of two states having a grievance a- gainst one another might engage in hostilities without having been authorized thereto, but at the same time, without the respective Governments ordering them to desist from further hostilities. We are not now concerned with the question whether or not a State which deliberately orders the commencement of hostilities without a previous declaration of war, or which thus omits to order its armed forces to desist from hostilities does or does not thereby commit any delinquency. It may or may not commit any delinquency thereby; but nevertheless it is engaged in war. War is actually in existence if the other party forcibly resists acts of force undertaken by a State. War is thus a condition and that condition existed and continued between China and Japan from 7th July 1937. The struggle certainly attained the proportions of a war.
War is now a matter of concern to the entire community of nations. The community may not afford to legitimatize hostility on the scale of war by permitting the war-making state, in its independent judgment, to decide that it is not making war.
The moment at which war begins is fixed, as between belligerents, by the commission of the first act of hostility on the part of the belligerent who takes the initiative.
The question before us, however, is not really one of determination of the character of the particular hostility as between the parties thereto or even in general. The question really is to find out the meaning of the declarants of the Potsdam Declaration.
The question is which “war” they intended to mean in their Potsdam Declaration or in the Cairo Declaration, when they used the word “war”.
In the Cairo Declaration, the three great Allies declared it to be their purpose that Japan “shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed. ”
The Potsdam Declaration of July 26, 1945 referred to “the prodigious land, sea and air forces” of the three great Powers and declared that “this military power is sustained and inspired by the determination of all the Allied Nations to prosecute THE WAR against Japan until she ceases to resist”. In its Clause 8, the Declaration referred to the terms of the Cairo Declaration and declared that the same shall be carried out.
In these Declarations, the war that is referred to seems to be the war which these three Powers were jointly waging. In this sense, strictly speaking, it can only mean the war which commenced on the 7 th of December 1941 with the Japanese attack on Pearl Harbour.
The hostility between Japan and China before that date certainly had the character of war. But the difficulty is that this was never declared to be such by the hostile parties themselves, and at least America chose by her conduct not to recognize this as war. Admittedly, America rendered all possible helps to China and such helps were inconsistent with the neutral character of that country. If we take it that this hostility was recognized as war by America, then, in international law, America was already involved by her action in that belligerency, and the case relating to attack on Pearl Harbour becomes absolutely meaningless. Long before that attack, America, by her action, became, in that case, a belligerent country, and whatever might have been the nature of the war which Japan was carrying on against China, as soon as America chose to take part in it on the side of China, Japan became entitled to take any belligerent steps at any time against America.
The negotiations between Japan and America certainly were not indicative of any truce. Even if it were so, America herself took actions during it which were again hostile to Japan.
Before the attack on Pearl Harbour, both America and Japan, however, were considering themselves to beat peace on the footing that hostility between China and Japan was not war and that consequently America owed no duty to be neutral in respect of that hostility.
Japan did not give the hostility the name of “war” perhaps because she thereby expected to elude the constraints of the Kellogg-Brind Pact, perhaps she thought that simply by omitting to issue a declaration it would be possible for her to avoid the opprobrium of waging war, and to evade the duties imposed by international law for the conduct of war.
Japan says that she was anxious to localize the matter. Of course, it must be said that by not declaring the hostility to be war, Japan deprived herself of certain valuable rights of belligerency also, like rights of blockade, etc.
China also did not want to give the name of “war” to this hostility before Japan became involved in war with the United States of America by her attack on Pearl Harbour,
China did not give it the name of “war” perhaps because she needed the assistance of the so-called neutral countries who were anxious to avoid being openly at war.
America also did not give it that name: perhaps she desired to escape the disabilities of her neutrality legislation whereby the shipments of arms and munitions of war to belligerents were automatically forbidden. America certainly could have openly acknowledged a state of war.
A nation intent on peace and determined to uphold the reign of law might consider it a solemn duty to avoid any implied connivance in the evasion of international obligations. Whatever that be, the hostility was not acknowledged as war by America, and America continued her help to China and yet continued in her so-called peaceful relations with Japan.
Thus, if they were consistent, neither China nor the United States, two of the three declaring powers at Potsdam, could have given the name of “war” to that course of the hostility which elapsed before the date of the attack on Pearl Harbour.
It seems, therefore, not unreasonable to contend that when these parties subsequently used the term “war”, they, thereby, did not refer to that hostility to which they had hitherto denied that name.
There are other indications in these declarations which might also point to similar intention. Formosa, Manchuria, Korea and the Pescadores are specifically referred to in the declaration. It is also mentioned that Japan will be expelled from all other territories which she has taken by violence and greed”. These must refer to matters affected by acts of force already decisive. They cannot refer to territories occupied in course of the war in question. That war is still indecisive. “Surrender is being demanded from Japan” certainly on the footing that Japan “is going to be defeated”. Therefore, when we find express reference to these territories, they are at least considered by the declaring Powers as having fallen into the hands of Japan as the result of aggressive acts not in course of the very war in which Japan “is going to surrender” and which is thus going to be decisive against Japan. This is obvious at least in the case of Korea and Formosa.
There is thus much force in the contention of the Defense that the Allied Powers, by using the term “war” in the Cairo and Potsdam Declarations, referred only to the war which commenced on 7th December 1941 and was being jointly waged by the three declaring Powers and, therefore, the surrender must be taken as terminating only that war. The jurisdiction of the Tribunal should, therefore, be confined to the acts in or in connection with that war.
At the same time, as I have pointed out above, the hostility which commenced between China and Japan on 7th July 1937 cannot be denied the name of “ war”; as a matter of fact, the entire subsequent development can be traced to the trouble created by this hostility. It is difficult to think that the parties, including China, were not at all intending to refer to this portion of the hostility, which really formed the major portion of the trouble. To assume that the Powers were excluding this portion of the hostility from the term “war” as used by them in the declarations, in view of certain anomalous legal consequences involved in recognizing the same as war, is to assume that even in those moments the Parties were meticulous about legal technicalities. There is no evidence that the Parties were not taking a broad view of the facts as known in the world, but, in the choice of their name, were being influenced by the legal technicalities noticed above.
On a careful consideration of everything that could be said in this connection, I am inclined to the view that the word “war” as used in these declarations included the hostilities which commenced with the Marco Polo Bridge Incident of 7 th July 1937.
WAR GRIMES STRICTO SENSU
CHARGES OF MURDER AND CONSPIRACY
(COUNTS 37 TO 53.)
I would now take up the counts wherein the accused persons have been charged with “murder”. I mean the counts thirty-seven to fifty-two.
The charges in counts thirty-seven to forty-three relate to the period between 1 June 1940 and 8 December 1941 and are based on the following allegations:
1. The accused persons (named in the counts) participated as leaders, organizers, instigators and accomplices in the formulation or execution of a common plan or conspiracy.
2. The object of such plan or conspiracy was unlawfully to kill and murder:
(a) By initiating unlawful hostilities against the countries named,
( b ) By unlawfully ordering, causing and permitting the armed forces of Japan to attack.
3. ( a ) The hostilities and attacks were unlawful because they were in breach of Treaty Articles specified in Appendix B of the Indictment.
(b ) On this ground the armed forces of Japan could not acquire the rights of lawful belligerents.
4. The accused persons
(а) Intended that such hostilities should be initiated in breach of Treaty Articles specified in Appendix B;
(б) Were reckless whether such Treaty Articles would be violated or not.
5. The accused unlawfully killed and murdered the persons named in counts thirty-nine to forty-three, by ordering, causing and permitting the armed forces of Japan to attack ....
THE BASIS OF CRIMINAL LIABILITY of the persons charged in these counts is given to be the following:
1. That the common plan has been executed.
2. That the conspirators are responsible for all acts done in execution of the common plan.
The execution of the common plan and the acts done in such execution are detailed in counts thirty-nine to forty-three, and in these counts it is charged that the accused unlawfully killed and murdered the persons named therein BY ordering, causing and permitting the armed forces of Japan TO ATTACK the territories etc. named therein.
The charges in counts FORTY-FIVE TO FIFTY are that the accused persons named therein,
1. Unlawfully killed and murdered—
( b ) Disarmed soldiers;
2. BY unlawfully ordering, causing and permitting the armed forces of Japan,
(a) To ATTACK the territory named in breach of treaty and
(b) To slaughter the inhabitants contrary to international law.
These charges may be split up into two categories:
1. The charges of unlawful killing and murdering BY unlawfully ordering, causing and permitting the armed forces of Japan TO ATTACK the territories named, —acts of killing etc. coming in as necessary incidents of such attack.
2. The charges of unlawful killing and murdering BY unlawfully ORDERING, CAUSING and permitting the armed forces of Japan TO SLAUGHTER the inhabitants of the territories named.
The first of the above two categories will be considered along with the charges in counts 37 to 43.
The second, if established, would, in my opinion, constitute War Crimes Stricto Sensu. I would deal with this part of the charges in these counts separately.
The charges in counts fifty-one and fifty-two are that the accused persons named therein:
1. Unlawfully killed and murdered certain members of the armed forces of the attacked country,
2. By ordering, causing and permitting the armed forces of Japan to attack the territories named therein.
Count fifty-one relates to the incident of the summer of 1939 in the region of the Khalkhin-Gol River in the territories of Mongolia and the Union of Soviet Socialist Republics. The persons charged are ARAKI, HATA, HI- RANUMA, ITAGAKI, KIDO, KOISO, MATSUI, MUTO, SUZUKI, TOGO, TOJO and UMEZU.
Count fifty-two relates to the incidents of July and August of 1938 in the region of Lake Khasan in the U. S. S. R. The persons charged are ARAKI, DOHIHARA, HATA, HIRANUMA, HIROTA, HOSHINO, ITAGAKI, KIDO, MATSUI, SHIGEMITSU, SUZUKI and TOJO.
I have already given my reason why I consider the charges laid in these two counts to be beyond the jurisdiction of this Tribunal.
The prosecution case in counts thirty-seven to forty-three, and forty-five to fifty-two, is;
1. That the hostilities referred to therein were illegal, being in breach of treaties or having been initiated in violation of the regulations;
2. That consequently the jural incidents of belligerency did not attach to them and the invading party had not any belligerent right;
3. That as a result, all the acts of killing etc. done in course of such hostilities were without the protection of any belligerent right and were ordinary murder etc.
I have already given my view of the questions involved in the propositions 1 and 2 as above stated while examining the definition of aggressive war. In my opinion, the hostilities referred to in these counts constituted “WAR” within the meaning of the international law in spite of the infirmities attendant upon their initiation and in spite of their being in violation of treaties etc. In spite of the alleged facts, deficiencies or violations, these hostilities attracted to themselves the normal jural incidents of belligerency.
As I have noticed in an earlier part of this judgment, the charter establishing this Tribunal in its Article 5 (c) speaks of ‘crimes against humanity’ and names them as ‘ murder, extermination, enslavement, deportation and other inhumane acts committed before or during the war. . . ’ Originally this provision in the Charter was confined to acts “committed against any civilian population, before or during war. . ." A few days before the indictment in the present case was presented, the Charter was amended dropping these limiting words against any civilian population’.
I have already given my reason why I could not construe the Charter as defining any crime and why, even if the Charter purported so to define, the definition would not have been binding on us. In this view of the provisions of the Charter, I need not proceed to examine whether the acts alleged in these counts would be covered by this alleged definition of “crimes against humanity”, and, how the amendment of the Charter would affect the position.
Mr. Comyns Carr coming to these counts contended that “murder” would be the inevitable consequence of aggressive warfare. According to him these counts reduce the matter to its simplest and most conclusive form. Mr. Carr says:
“Every statesman or commander who is a party to ordering his army to attack and kill an enemy, even in legitimate warfare, fulfils all the conditions of murder if it was done without lawful justification. However, if it appears that this was done in lawful belligerency he is not guilty. . . The accused who necessarily fulfils all the other elements of murder, in that he has purposely ordered the killing of human beings, has to rely upon a lawful justification.” He says, “War is such a justification, but if the war is unlawful his justification fails. Now even if it were not established . . . that aggressive war ... is itself a punishable crime, it is certainly not lawful, and therefore cannot afford a justification for what is otherwise plain murder. . . It has always been implicit in the definition of murder in every civilized country.”
I am afraid I cannot accept this contention of Mr. Carr. In order to take any killing outside the definition of murder all that is necessary is to show that it was done in war, the war itself is not required to be justified at the same time. The killing in question does not come within the definition of the national system because of the war-relation between the two states. In so far as the definition extends to acts done by the subjects of other Sovereign States, it contemplates peaceful relation between the states and not war-relation, If the relation has been the result of any unjust or unjustifiable act of a state that state may be answerable in various other ways; but that fact would not change the character of the relation. The killing is done under the authority of the killer’s state animo belligerendi and this is sufficient to place it outside the definition of murder in any national system.