[English] - Paper on IMTFE

Paper on the International Military Tribunal for the Far East.

Contents:

• Introduction.

1. Historical and diplomatic background.

   1. The Cairo Conference.

   2. The Potsdam Conference.

   3. The Japanese Instrument of Surrender.

2. The Charter of the Tribunal and other fundamental legal sources.

   1. Charter.

   2. Treaty.

3. The judges.

   1. Sir William Flood Webb [Australia].

   2. Radhabinod Pal [India].

   3. Mei Ju-ao [Republic of China].

4. The charges.

   1. Crimes against peace [Class A].

   2. Conventional war crimes [Class B].

   3. Crimes against humanity [Class C].

5. Imperial House of Japan.

6. Judgments and sentences:

   1. Majority judgments.

   2. Dissenting judgments.

   3. Separate judgments.

Introduction:

The International Military Tribunal for the far East was a tribunal, a court, that was created by Douglas MacArthur in order to prosecute Japanese’s war crimes. The Tokyo Tribunal was not only a tribunal in ‹‹stricto sensu›› but also a demonstration of power detained by the Allied Powers.

The demonstration of power was not accidental but was held by those Nations that ‘’won’’ the Second World War [September 1, 1939 - September 2, 1945].

The trial was held in the War Ministry office in Tokyo, Japan. The tribunal convened on April 29, 1946. However the prosecution opened the case only on May 3rd, 1946 [only 5 days later].

Dealing with the creation of the Tribunal, we must talk about the historical background in order to understand the reason why the Tribunal has been created.

1. Historical and diplomatic background:

Before the constitution of the Tribunal for Japanese’s war crimes there were several occasions where the presidents, chiefs and military generals of the Allied Powers met and discussed about the Japanese’s government and crimes that were committed during World War II:

1. The Cairo Conference [The Cairo Declaration]: held in Cairo, Egypt, on November 27, 1943 where President Franklin D. Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-Shek of the Republic of China were presents. In this conference the leaders above-mentioned discussed about the crimes that were being committed in Japan and in all the territory of Eastern Asia, in American territories, for example in Hawaii, the Philippines, Guam, and Wake Island and the British territories of Malaya, Singapore, and Hong Kong. At the end of this conference all the leaders concluded that they would have continued to deploy any military force until Japan’s unconditional surrender.

2. The Potsdam Conference [Proclamation Defining Terms for Japanese Surrender]: held in Potsdam, Occupied Germany, from July to August 2, 1945 where the leaders of the Allied Powers [even if in this case there was a different President of the United States, Harry S. Truman and the presence of Joseph Stalin, the General Secretary of the Communist Party of the Soviet Union] agreed to plan a postwar peace. This declaration also states that if Japan had not surrendered then it would have faced ‹‹prompt and utter destruction››.

3. The Japanese instrument of surrender: a written agreement that formalised, once for all, the surrender of the Empire of Japan marking the end of of World War II. In this agreement were taken into account all the previous declarations in which the topics were about the Japanese’s war crimes.

2. The Charter of the Tribunal and other fundamental legal sources:

On January 19th, 1946 we had the promulgation of the Charter of the International Military Tribunal for the Far East [also known as ‹‹C.I.M.T.F.E.››].

General Douglas MacArthur, the Supreme commander of the Allied Powers, declared that a tribunal for the Japanese’s war crimes was about to be created. This Charter is the fundamental legal source for the Tokyo Tribunal, in fact it established the procedures and the types of crimes that were about to be tried.

A comparison can be made between the Charter for the Japanese’s war crimes and the Treaty for the Nuremberg trials because the first one was made following the lead of the second one.

However we can also detect that the fundamental legal source for the Japanese’s trials is a Charter, instead the fundamental legal source for the trials of Nuremberg is a Treaty.

If we were talking about comparison before, now we can talk about the differences because we ask to ourselves what is a Charter and what is a Treaty:

1. A Charter is a document issued by some authority, creating a public or private institution, and defining its purpose and privileges.

2. A Treaty is, in international law, a binding agreement concluded by subjects of international law, namely states and international organisations.

In any case, nothing but disagreement because the Allied Powers were concerned regarding whom to try and how to try them. Even if there was lack of consensus, General MacArthur, decide to initiate the arrets and, on September 11th he ordered the arrests of 39 suspects, the majority of them were part of General Hideki Tojo’s war cabinet.

3. The judges:

The judges that were involved in the Tokyo Tribunal were not chosen by accident, in fact the choice of who has to be a judge during these trials was made by Douglas MacArthur.

All the judges of the Tokyo Trial came from different parts of the world and, in particular, those from Nations that won the was, the Allied Powers.

It’s not important to know them all, in my opinion, but we must put particular attention on 3 judges and those are:

1. Judge Sir William Flood Webb: judge from the Dominion of Australia and he was president of the International Military Tribunal for the Far East.

2. Judge Radhabinod Pal: judge from the British India [nowadays known as Bangladesh] and he was a judge of the Calcutta High Court.

3. Judge Mei Ju-ao: judge from the Republic of China [nowadays known as Taiwan] and he was a jurist, an attorney and a member of the Legislative Yuan, a unicameral legislative of ROC.

The first one, Judge Sir William Webb, a judge of the Supreme Court of Queensland and the High Court of Australia, was chosen by General Douglas MacArthur as the president of the International Military Tribunal for the Far East. He was nominated as president because, during the Second World War, he was in close contact with the crimes committed by Japanese’s government.

The second one, Judge Radhabinod Pal, a judge of the Calcutta High Court and distinguished jurist in British India, had played an important role during the final moments of the trial because he gave a dissenting judgment. The importance of this judge is not only because he gave a dissenting judgment but its contents. Judge Pal affirmed that, during the Tokyo Trial, were not taken into account several crimes. Those crimes weren’t committed by Japanese’s government only but also from those Nations that were part of the Allied Powers. His dissent concerned, for example, the mass systematic rape in Nanjing [link to Letter C, § V], also known as the Nanjing Massacre and, the most important rift dealt with the launching of the two American nuclear bombs. His dissent became food for thoughts for several jurists and historians throughout history because it is explained one of the primordial form of ‹‹western colonialism›› in a legal context.

The last judge that played a fundamental role during the trial was Judge Mei Ju-ao. Well-known jurist and attorney in the Republic of China. His role during the trial was crucial because the Republic of China was the State that mostly suffered injury from the Japanese’s war crimes. He brought a border view of the crimes that had been committed by the Japanese during the Second World War. His contribute was on spot because he helped other judges to understand the injuries and the realities of the war that was set in the Pacific Ocean.

4. The charges:

The topic of charges it’s not easy to summarise because even the judges found it difficult to examine all the charges that were about to be tried. The only legal reference that was taken was the Treaty for Nuremberg [and other minor international declarations] which states that there were three different types of crimes and those were:

1. Crimes against peace [Class A]: Article 5, letter a) of the Tokyo Charter. ‹‹ […] 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; […]››. As we can see there isn’t a definition of a ‘’war of aggression’’ and that’s one of the mostly topic discussed during the process of understanding which types of crimes were about to be tried. Nonetheless the Tokyo Charter did state that a war of aggression was a crime under international law, which entailed individual responsibility. I wanted to add a quote of a judge for Nuremberg trials, taken by the case United States et. al. v. Hermann Wilhelm Göring because, in my opinion, this quote gives us a vision of ‘’war of aggression’’ that correspond on what it was considered during those years and the quote is: ‹‹To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other was crimes in that it contains within itself the accumulated evil of the whole››.

2. Conventional war crimes [Class B]: Article 5, letter b) of the Tokyo Charter. ‹‹[…] Conventional War Crimes: Namely, violations of the laws or customs of war; […]››. They are also known as ‘’war crimes’’. In my opinion we have very little to say because the list of crimes is not extended as the crimes against humanity list is. In this category we can find violations of the laws or customs of war like killing of hostages, murder or ill-treatment of prisoners of war or plunder of public or private property.

3. Crimes against humanity [Class C]: Article 5, letter c) of the Tokyo Charter. ‹‹[…] Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders" organizers, instigators and accomplices participating in the formulation or execution of a common plan or con- spiracy to commit any or' the foregoing crimes are responsible for all 'acts performed by any person in execution of such plan.››. These crimes were based on the Treaty for Nuremberg. Regarding this type of crimes we can only say that they are included all the type of crimes which we all know, for example: murder, extermination, enslavement, mass systematic rape and sexual enslavement in a time of war.

5. Imperial House of Japan:

After taking into account the charges I think that it is now important to examine the juridical consequences that the House of Japan had to face [or not]. This topic has many controversies between historians.

Emperor Shōwa, born in 1901, also known as Hirohito [his English name], was the 124th emperor of Japan from 1926 until 1947, after which he was Emperor of the state of Japan until his death in 1989.

Hirohito should have abdicated as hoped by many. However, according to MacArthur, emperor’s abdication would have not been necessary.

According to historian Herbert P. Bix [a well-known writer, one time Pulitzer winner], Brigadier General Bonner Fellers would have protected the Emperor, coordinating the stories of the suspects, so that the emperor would be spared from indictment.

The Imperial House of Japan could have been regarded as potential suspects, in fact many family members had been involved in the war’s decisions.

According to the judgment of Judge Sir William Flood Webb [‹‹ […] no ruler can commit the crime of launching aggressive war and then validly claim to be excused for doing so because his life would otherwise have been in danger... It will remain that the men who advised the commission of a crime, if it be one, are in no worse position than the man who directs the crime be committed […]››] the Imperial House of Japan had to be ruled out from the trial because there were not sufficient evidences of the involvement. However, recovering the accounts of American’s soldiers and Herbert P. Bix, the involvement of the Imperial House of Japan was well known by the Nations but General Douglas MacArthur had other plan for the Emperor and for the Japanese State.

6. Judgments and sentences:

In conclusion we can talk about the judgments.

This subject has a particularly difficult nature because we have different judgments based on different legal systems.

One of the rule that was voted by all the judges was that the judgments would have given in majority, and only after the majority could have been given the dissenting augments and the separate judgments.

Sentences were given to 23 defendants: 7 defendants were sentenced to death by hanging for the three class of charges, 16 defendants were sentenced to life imprisonment.

Bibliography:

1. Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited; edited by Yuki Tanaka, Tim McCormack and Gerry Simpson; International Humanitarians Law Series; Martinus Nijhoff Publishers.

2. Charter of the International Military Tribunal for the Far East; established by the Supreme Commander of the Allied Powers (General MacArthur).

3. Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis; developed by the European Advisory Commission; [Charter of Nuremberg].

4. Hirohito and the Making of Modern Japan; Herbert P. Bix, published by HarperCollins Publishers; 2000.

5. International Military Tribunal for the Far East, Judgment of 4 Novembre 1948.