793.94/12701
The American Ambassador in Japan ( Grew ) to the Japanese Minister for Foreign Affairs ( Hirota )
Excellency: I have the honor to acknowledge the receipt of Your Excellency’s notes no. 6 of February 15, 1938, with regard to the marking of property in China of nationals of third countries, and no. 7 of February 17, 1938, in which it is stated that the Japanese Government cannot assume responsibility for incidental damage done to such property in those cases where the Chinese have deliberately used areas adjoining such property for military purposes. I did not fail to communicate to my Government the texts of these notes.
Under instruction from my Government I take note of the statement that notwithstanding the efforts made by the Imperial Army in its policy of respecting to the utmost the lives and property of nationals of third countries in China it is regretted that there have been instances where the property of nationals of third countries has suffered damages owing to inability to discern the location of property or to lack of distinguishing marks or to use of such property for military purposes; and of the statement that it continues to be the policy of the Imperial Army to respect the lives and property of nationals of third countries in China. Further I note the request that I inform Americans or administrators of American property outside of zones indicated that they should carry into effect certain precautionary measures.
I have communicated the text of Your Excellency’s note to the appropriate American officials and I assume that appropriate communication will be made in so far as feasible to American nationals or administrators of American property in China outside zones now occupied by Japanese Imperial forces.
I am instructed, however, to point out that under the circumstances which prevail and in connection with the areas described there rests upon American officials and other American nationals in China no obligation whatsoever to take precautionary measures requested on [Page 587] behalf of the Imperial forces in Your Excellency’s note under reference; I am to state that toward safeguarding American lives and interests involved precautionary measures have voluntarily been advised and voluntarily been taken in so far as possible and that such measures will continue voluntarily to be taken; but that, nevertheless, irrespective of whether American nationals take or do not take such precautionary measures, obligation rests upon the Japanese military authorities to exert the utmost precaution to the end that American nationals and property shall not be injured by Japanese military operations; and that whether such requests of the Imperial forces have or have not been complied with, whenever and wherever American nationals or property have been or may be injured in consequence of the operations of Japanese armed forces the American Government is compelled to attribute to the Japanese Government responsibility therefor.
American nationals and property lawfully located in China possess there certain well-recognized rights which are in no way altered by the circumstances of the present conflict; American nationals, although advised by American authorities to withdraw from areas in which danger exists, are under no obligation to do so, and in some cases find withdrawal impossible; American property situated in areas which are made or which are about to be made theaters of military operations can in most cases not be removed; this is obviously the case as regards real property; the presence of Chinese military personnel or equipment in the neighborhood of American nationals or property is clearly a circumstance over which American officials or other American nationals do not and cannot exercise control, and it in no way alters the rights of such American nationals or lessens the obligations of the Japanese armed forces or authorities to respect those rights; disclaimers of the responsibility by the Imperial forces will not alter these rights or these obligations respectively. In the light of these facts and considerations, failure on the part of American officials or nationals to have complied with the requests of the Imperial forces under the circumstances affords no excuse for injury which has occurred or which may occur to American nationals or property by Japanese armed forces; and any such injury, as has been stated in my note No. 781 of August 27, 1937,42a is considered by the American Government as upon the responsibility of the Japanese Government.
I avail myself [etc.]