Foreign Relations of the United States: Diplomatic Papers, 1945, The British Commonwealth, The Far East, Volume VI

740.00116 P.W./10–345

Report by the State-War-Navy Coordinating Subcommittee for the Far East²⁵

SWNCC 57/3

[Washington, September 12, 1945.]

The Problem

1. To determine the policy of the United States in regard to the apprehension and punishment of war criminals in the Far East.

2. To prepare a directive on the subject to the Supreme Commander for the Allied Powers.

Facts Bearing on the Problem

3. See Appendix “A” for “Facts Bearing on the Problem.”

Discussion

4. See Appendix “B” for “Discussion.”

Conclusions

5. Appendix “C” should be approved as the policy of the United States in regard to the apprehension and punishment of war criminals in the Far East.

6. Steps should be taken by the United States to secure the agreement of China, Great Britain and the Soviet Union, along with such other nations as might be agreed upon, to the principles contained in Appendix “C”.

7. Pending agreement on Appendix “C” by the nations concerned, the directive at Appendix “D” should be approved and dispatched to the Supreme Commander for the Allied Powers.

Recommendations

8. It is recommended that:

a. This report be forwarded to the Joint Chiefs of Staff with a request for their comments from the military point of view as a matter of priority;

b. Upon approval by the State-War-Navy Coordinating Committee of the “Conclusions” in paragraphs 5, 6 and 7, including the policy at Appendix “C” and the directive at Appendix “D”, this report be transmitted to the Joint Chiefs of Staff and to the State, War and Navy Departments for their guidance and, where appropriate, for implementation; and

c. After final approval by the State-War-Navy Coordinating Committee, the United States National War Crimes Office be requested by the State-War-Navy Coordinating Committee to furnish the appropriate lists of war criminals to General MacArthur forthwith.

[Enclosure 1]

Appendix “A”

Facts Bearing on the Problem

1. The United Nations from time to time have made declarations of their intention that war criminals should be brought to justice. In the tripartite declaration to Japan issued by the U.S., U.K., and China at Potsdam on 26 July 1945²⁶ and subsequently adhered to by the Soviet Union, it is stated that “stern justice shall be meted out to all war criminals”.

2. During the progress of hostilities the Allied Commanders in the various theaters possessed and exercised authority, by virtue of their command, to appoint international military courts for the trial of various war criminals. The U.S., U.K., U.S.S.R. and France have also established an International Military Tribunal²⁷ for the just and prompt trial and punishment of major war criminals of the European Axis nations. The agreement establishing that Tribunal defines the crimes set forth in paragraph 1 of the attached directive (Appendix “D”) as within its jurisdiction. Consideration has been given to that agreement in preparing this report.

3. U.S. policy with reference to the apprehension, extradition and trial of war criminals in Europe, to the extent that such policy is to be executed by military commanders in Germany, is stated in IPCOG 13 (J.C.S. 1023/10), to which consideration has been given in the preparation of this report.

4. Consideration has also been given to the U.S. “Directive on United Nations’ Renegades and Quislings” issued to the Commander-in-Chief, U.S. Forces in Germany (J.C.S. 1349).

5. The United Nations War Crimes Commission at London, in response to a query from its Far Eastern and Pacific Sub-Commission in Chungking, instructed the Sub-Commission on February 7, 1945 as follows:

“Considering the question in the light of its own practice, the Commission feels that the Sub-Commission should not limit its investigations to war crimes committed after a particular date, and that each case should be considered on its own merits.”

6. The report submitted June 7, 1945 to President Truman by Justice Jackson, Chief of Counsel for the United States, in the prosecution of the European Axis War Criminals,²⁸ contains the following passage concerning the treatment of suspected war criminals in the custody of United States forces:

“I asked the War Department to deny those prisoners who are suspected war criminals the privileges which would appertain to their rank if they were merely prisoners of war; to assemble them at convenient and secure locations for interrogation by our staff; to deny them access to the press; and to hold them in close confinement ordinarily given suspected criminals … Our choice is between treating such prisoners as honorable prisoners of war with the privileges of their ranks, or to classify them as war criminals, in which case they should be treated as such. I have assurances from the War Department that those likely to be accused as war criminals will be kept in close confinement and stern control.”

[Enclosure 2]

Appendix “B”

Discussion

1. In various respects the policies and, to some extent, the procedures concerning the apprehension and treatment of war criminals as set forth in the Directive to the Commander in Chief of the U.S. Forces of Occupation in Germany (J.C.S. 1023/10) and in the Charter for the International Military Tribunal for Europe will be suitable for the Far East also. However, the propensity of the Japanese for suicide as an honorable escape from a dishonorable or hopeless position, and the tendency of the Japanese public to martyrize perpetrators of the most atrocious crimes if the accused pleads patriotic motives for his act, indicate the need for special precautions. In order that Japanese war criminals may not escape the ignominy of punishment for their offenses, and in order that the Japanese people may be impressed with the fact that such persons are really criminals and not patriots, suicides should be kept to a minimum. To that end, suspects’ names should be kept secret until the moment of their arrest. The Japanese authorities should not be charged with direct responsibility for seizing suspected war criminals, as this procedure would afford increased opportunity for suicide or escape, although they may be required to give such assistance as the occupation authorities consider necessary and advisable. No public announcement should be made of the suspect’s arrest and, once in custody, he should be afforded no opportunity through the press or by other means to plead his case before the Japanese public.

2. Similarly, the procedures and policies contemplated or already being applied in Europe relating to the trial and punishment of war criminals will be generally applicable in the Far East. Military and civil courts in the colonial countries of Southeast Asia, employing the same judicial procedures and legal codes as in the metropolitan countries, should be capable of trying and punishing war criminals sent back to the scenes of their crimes in that region. The Chinese courts should also be adequate for the purpose.

3. The advantages of an international military tribunal or tribunals for the trial of major criminals charged with offenses under paragraph 1. A. of the directive (Appendix “D”), and of organizations whose members are collectively charged with criminal acts, for example, the Japanese Army and Navy General Staffs of recent years and the leading ultra-nationalistic societies, are as apparent in the case of Japan as in the case of Germany.

4. The charter of the International Military Tribunal for Europe provides for a committee for the investigation and prosecution of major war criminals to be composed of a chief prosecutor from each of the signatory powers. This committee will, in general, determine the major war criminals to be tried by the International Tribunal, approve indictments, recommend rules of procedure, investigate and collect evidence prior to trial, secure witnesses and act as prosecutor at the trials. It is believed that a similar committee or agency should be established for Japan under the authority of the Supreme Commander for the Allied Powers. Experience in Europe has shown the desirability of a unified prosecuting agency.

[Enclosure 3]

Appendix “C”

Policy of the United States in Regard to the Apprehension and Punishment of War Criminals in the Far East

[Here follow paragraphs 1 through 5, which are substantially the same as similarly numbered paragraphs in Appendix D, infra.]

6. The Supreme Commander for the Allied Powers (a) should promptly establish an agency, acting under his Command to investigate reports of war crimes, to collect and analyze evidence, to arrange for the apprehension and prompt trial of suspects, to prepare, supervise and conduct the prosecution of individuals and organizations before international military courts or tribunals, and to recommend to the Supreme Commander which individuals and organizations should be prosecuted, before what courts they should be tried and what persons should be secured as witnesses, and (b) should provide, after discussion with the local representatives of the nations involved, and in a manner consistent with efficient administration, for equitable inclusion in the membership of such agency of suitable representatives of the United States, China, Great Britain and the Soviet Union and of other United Nations. This agency should advise the Supreme Commander and other Military commanders for the Allies on matters relating to war criminals. This agency should attach importance to the investigation of the evidence that offenses of the type described in paragraph 1.A. above have been committed, should collect and analyze the evidence of such offenses and should recommend to the Supreme Commander a plan as indicated in paragraph 5 above for the appointment of an international court for the trial of such offenses and the charges to be preferred. This agency should also maintain a central record and information office of Japanese war criminals and war crimes, the records and files of which should be available to any interested United Nation.

7. The military command of any nation (including the United States) participating in the occupation of areas previously dominated by Japan may upon the authorization of the Supreme Commander for the Allied Powers establish special national military courts to deal with war criminals not held or requested by the Supreme Commander for trial by an international military court or tribunal of the types referred to in paragraph 6 above. Such courts should be separate from courts which may be set up to deal with current offenses against the occupation or infractions of military discipline.

8. Military commanders of forces of occupation in the Far East should promptly comply with a request by the government of any one of the United Nations or Italy for the delivery to it of any person who is stated in such request to be charged with a war crime, subject to the following exceptions:

(1) Persons who have held high political, civil or military positions in the Japanese Empire or in one of its allies, co-belligerents or satellites, should not be delivered, pending decision whether such person should be tried before an international military court or tribunal. Suspected war criminals desired for trial before such a court or tribunal or persons desired as witnesses at such trials will not be turned over to the nation requesting them so long as their presence is desired in connection with such trials.

(2) Where persons are requested by more than one of the Governments above mentioned for trial of a war crime, the military commanders concerned should make their determinations based on all the circumstances, including the relative seriousness of the respective charges against such a person and the national interests involved, and should deliver the requested person to a particular United Nation or Italy accordingly.

9. Compliance with any request for the delivery of a suspected war criminal should not be delayed on the ground that other requests for the same person are anticipated.

10. Delivery of a suspected war criminal to a requesting government should be subject to the condition that if such person is not brought to trial, tried and convicted within six months from the date he is so delivered, he will be returned to the authority who made delivery if he has been requested for trial by any of the other United Nations or Italy.

11. Military commanders should take under their control, pending subsequent decisions as to its eventual disposition, property, real and personal, found in areas of their respective jurisdiction and owned or controlled by persons taken into custody pursuant to the provisions of paragraph 3 above.

12. Such measures as are deemed necessary should be taken to insure that witnesses to war crimes will be available when required.

13. The execution of death sentences should be deferred if there is reason to believe that the testimony of those convicted would be of value in the trial of other war criminals.

14. Any national of any United Nation who may be requested, or who there is reason to believe may be desired, by his government as a renegade or quisling, should be arrested. Such persons should normally be turned over as soon as practicable to their government.

15. Military commanders having custody of alleged offenders requested under paragraphs 8 and 14 above, if in doubt as to whether such persons should be turned over to the demanding nation for trial, should consult their government and, in appropriate cases, leave the matter to be dealt with through diplomatic channels. Within the main islands of Japan, the Commander in Chief, U. S. Army Forces in the Pacific [Supreme Commander for the Allied Powers²⁹], will have custody of such alleged offenders and should consult the Joint Chiefs of Staff in cases of doubt.

[Enclosure 4]

Appendix “D”

Draft Joint Chiefs of Staff Directive on the Identification, Apprehension and Trial of Persons Suspected of War Crimes

This directive is issued to you as Supreme Commander for the Allied Powers.

1. The term “war crimes” as used herein, includes:

A. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

B. Violations of the laws or customs of war. Such violations shall include but not be limited to murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of, or in, occupied territory, murder or ill-treatment of prisoners of war or internees or persons on the seas or elsewhere, improper treatment of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity.

C. Murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war or persecutions on political, racial or religious grounds in execution of or in connection with any crime defined herein whether or not in violation of the domestic law of the country where perpetrated.

2. The offense need not have been committed after a particular date to render the responsible party or parties subject to arrest, but, in general, should have been committed since, or in the period immediately preceding the Mukden incident of September 18, 1931. The preponderance of cases may be expected to relate to the years since the Lukouchiao incident of July 7, 1937.

3. You will, in the areas subject to your jurisdiction, take all practicable measures to identify, investigate, apprehend and detain all persons whom you suspect of having committed war crimes as defined in paragraph 1, subparagraphs B and C above, and all persons whom any one of the United Nations or Italy notifies to you as being charged with such crimes. You will similarly apprehend and detain the persons deemed to be liable under paragraph 1.A. above, who are named in any list which may be sent you by the United States National War Crimes Office and such other persons against whom you have probable cause for charging under paragraph 1.A. upon the basis of evidence available to you. In executing these tasks you will require from the Japanese such assistance as you deem necessary.

4. You will hold suspected war criminals in close confinement, without access to the press or other media of public information, and without distinction as to rank or position, as befits ordinary criminals.

5. As Supreme Commander for the Allied Powers, you have power (a) to appoint special international military courts (which term shall be held to mean tribunals of any kind), composed of military or naval officers or civilians of two or more of the United Nations, for the trial, under any applicable law, domestic or international, including the laws and customs of war, of Far Eastern war criminals where the alleged offenders are, in the Supreme Commander’s opinion, appropriately to be tried by an international court; and (b) to prescribe or approve rules of procedure for such tribunals. The appointment of any such international court will be discussed by the Supreme Commander or his designated representative in advance with the appropriate local officers or representatives of each nation to be represented upon such a court and fair arrangements will be made for³⁰ appropriate representation of each such nation upon the court. No such officer or civilian will be appointed to serve upon such a court without the approval of the local commander of the forces of his nation or such other official as any nation may prescribe to give such approval for its own nationals. In the appointment of any such international court and in all trials before it, the international character of the court and of the authority by which it is appointed should be properly recognized and emphasized, particularly in dealings with the Japanese people. Until further authorization by the Joint Chiefs of Staff, no international court for the trial of persons charged with offenses of the type described in paragraph 1.A. above will be established by the Supreme Commander. In submitting any plan for the appointment of such a court, you should specify the particular offenses and alleged offenders to be tried before the court and the nature of the coordination of the plan effected by you on a military level with representatives of the nations to be represented upon the court.

6. You will have (a) the responsibility for carrying out the judgments of any international courts or tribunals and (b) the power to approve, reduce or otherwise alter any sentence imposed by such a court or tribunal, but not to increase the severity thereof.

7. You may authorize the military command of any nation participating in the occupation of Japan, including the United States, to establish special military courts to deal with war criminals not held or requested by you for trial before an international court or tribunal. Such courts should be separate from courts which may be set up to deal with current offenses against the occupation or infractions of military discipline.

8. Subject to the provisions of paragraph 16, you will promptly comply with a request by the Government of any one of the United Nations or Italy for the delivery to it of any person who is stated in such request to be charged with a war crime, subject to the following exceptions:

(1) Persons who have held high political, civil or military positions in the Japanese Empire or in one of its allies, co-belligerents or satellites, will not be delivered, pending decision whether such persons should be tried before an international military court or tribunal. Suspected war criminals desired for trial before such tribunal, or persons desired as witnesses at trials before the tribunal, will not be turned over to the nation requesting them so long as their presence is desired in connection with such trials.

(2) Where persons are requested by more than one of the Governments above mentioned for trial of a war crime, you will make your own determination based on all the circumstances, including the relative seriousness of the respective charges against such a person and the national interests involved, and will deliver the requested person to a particular United Nation or Italy accordingly.

9. Compliance with any request for the delivery of a suspected war criminal should not be delayed on the ground that other requests for the same person are anticipated.

10. Delivery of a suspected war criminal to a requesting government shall be subject to the condition that if such person is not brought to trial, tried and convicted within six months from the date he is so delivered, he will be returned to you if requested for trial by any of the other United Nations or Italy.

11. You will take under your control, pending decision by higher authorities as to its eventual disposition, property, real and personal, found in areas subject to your jurisdiction and owned or controlled by persons taken into custody pursuant to the provisions of paragraph 3 above.

12. You will take such measures as you deem necessary to insure that witnesses to war crimes will be available when required.

13. The execution of death sentences should be deferred when you have reason to believe that the testimony of those convicted would be of value in the trial of other war criminals.

14. You will arrest any national of a United Nation who is requested, or whom you believe may be desired, by his government as a renegade or quisling. Subject to the provisions of paragraph 16, such persons should normally be turned over as soon as practicable to their government.

15. You should (a) promptly establish an agency, acting under your command, to investigate reports on war crimes and to collect and analyze evidence, to arrange for the apprehension and prompt trial of suspects, to prepare, supervise and conduct the prosecution of individuals and organizations before appropriate international military courts or tribunals, and to recommend to you which individuals and organizations should be prosecuted, before what courts they should be tried and what persons should be secured as witnesses, and (b) should provide, after discussion with the local representatives of the nations involved and in a manner consistent with efficient administration, for equitable inclusion in the membership of such agency of suitable representatives of the United States, China, Great Britain and the Soviet Union and of other appropriate United Nations. This agency should advise the Supreme Commander and other military commanders for the Allies on matters relating to war criminals. This agency should attach importance to the investigation of the evidence that offenses of the type described in paragraph 1.A. above have been committed, should collect and analyze the evidence with respect to such offenses and should recommend to you a plan for the trial of such offenses and the charges to be preferred. Any such plan should provide for the use of rules of procedure and the application of principles in accord with those adopted for use by the International Military Tribunal for Europe established by the agreement executed 8 August 1945, except where change is necessitated by differing circumstances in the Far East. Such plan should also provide that, for the trial of persons charged with offenses of the type described in paragraph 1.A. any international court appointed by the Supreme Commander should be selected by him from persons nominated by the appropriate military commanders of the several nations to be represented upon such court. This agency should also maintain a central record and information office of Japanese war criminals and war crimes, the records and files of which should be available to any interested United Nation.

16. Military commanders having custody of alleged offenders requested for trial under the provisions of paragraphs 8 and 14 above, if in doubt as to whether such persons should be turned over to the requesting nation for trial, may consult their government and in appropriate cases leave the matter to be dealt with through diplomatic channels. Within the main islands of Japan, you as the Commander in Chief, U.S. Army Forces in the Pacific [Supreme Commander for the Allied Powers’], will have custody of such alleged offenders and will consult the Joint Chiefs of Staff in cases of doubt.

17. You will take no action against the Emperor as a war criminal pending receipt of a special directive concerning his treatment.

25. Approved by the full Committee on October 2, 1945.
26. Conference of Berlin (Potsdam), vol. ii, p. 1474.
27. See annex to agreement signed at London, August 8, 1945, Executive Agreement Series No. 472, or 59 Stat, (pt. 2) 1544.
28. See White House press release, June 7, Department of State Bulletin, June 10, 1945, p. 1071.
29. As amended by the full Committee on October 2, 1945.
30. From this point through first sentence of paragraph 8 as revised by the full Committee on October 2, 1945.