Foreign Relations of the United States, 1946, The Far East, Volume VIII

740.00119 FEAC/4–446

The Secretary General of the Far Eastern Commission (Johnson) to the Secretary of State

restricted

Washington, 4 April 1946.

My Dear Mr. Secretary: The Terms of Reference of the Ear Eastern Commission provide that one of the functions of the Commission should be to “formulate the policies, principles and standards in conformity with which the fulfillment by Japan of its obligations under the terms of surrender may be accomplished.”

It is further provided that when such decisions are made by the Far Eastern Commission, “The United States Government shall prepare directives in accordance with the policy decisions of the Commission and shall transmit them to the Supreme Commander through the appropriate United States Government agency.”

At a meeting of the Far Eastern Commission held at 2516 Massachusetts Avenue, Northwest, Washington, D.C. on 3 April 1946 the enclosed policy decision was unanimously agreed to.

As Secretary General of the Far Eastern Commission, I have been instructed to forward this decision to you on behalf of the Commission, in order that the appropriate directives may be prepared and transmitted to the Supreme Commander in accordance with the Terms of Reference.⁶¹

As there was some discussion in the Commission as to the bearing this policy decision might be construed to have upon the status of the Japanese Emperor, I am enclosing for information and guidance in the preparation of an appropriate directive to the Supreme Commander for the Allied Powers an excerpt from the minutes of the Commission’s meeting. Reference is to paragraph 17 of the original United States directive to the Supreme Commander for the Allied Powers on Identification, Apprehension and Trial of Persons Suspected of War Crimes,⁶² which reads:

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

Respectfully yours,

Nelson Trusler Johnson

[Enclosure 1]

Far Eastern Commission Policy Decision FEC 007/3, April 3, 1946

Policy in Regard to the Apprehension, Trial and Punishment of War Criminals in the Far East

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 and 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 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 prosecutions 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, 1931.⁶³ The preponderance of cases may be expected to relate to the years since the Lukouchiao incident of July 7, 1937.⁶⁴

3. All practicable measures should be taken to identify, investigate, apprehend, and detain all persons suspected of having committed war crimes, as defined in paragraph 1 above, and all persons whom any one of the United Nations or Italy charges with such crimes.

4. Suspected war criminals should be held 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. The Supreme Commander for the Allied Powers should have:

(a) power to appoint special international military courts (which term should be held to include tribunals of any type) composed of military, naval, or air force officers or civilians representing any two or more of the states members of the Far Eastern Commission for the trial under any applicable law, domestic or international, including the laws and customs of war, of the Far Eastern war criminals indicted by the Governments of these states, and

(b) power to prescribe, subject to consultation with the representatives of those governments, rules of procedure for such courts. The Supreme Commander shall appoint to each international court a judge nominated by each state represented on the Far Eastern Commission which signifies its desire to participate in the work of such court. In the appointment of the international courts and in all trials before them, the international character of the courts and of the authority by which they were appointed and under which they act should be properly emphasized and recognized, particularly in dealings with the Japanese people. The Supreme Commander for the Allied Powers should have, (1) the responsibility for carrying out the judgments of any international courts appointed by him, and (2) the power to approve, reduce or otherwise alter any sentences imposed by any such courts, but not to increase the severity thereof, after consultation with the Allied Council for Japan and the Representatives in Japan of the other Powers, members of the Far Eastern Commission.

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 States members of the Far Eastern Commission. 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 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 or 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 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 Supreme Commander for the Allied Powers will have custody of such alleged offenders and should consult the Joint Chiefs of Staff in cases of doubt.

[Enclosure 2]

Excerpt From Minutes of the Seventh Meeting of the Far Eastern Commission, April 3, 1946

“Sir Carl Berendsen⁶⁵ referred to paragraph 3 and said that although this paragraph empowered any of the United Nations or Italy to charge any individual with war crimes, it should be understood that the Supreme Commander should take no action against the Japanese Emperor without a further directive from the United States Government. In other words, paragraph 17 of the existing directive (FEC 007) should remain in force.

“General McCoy said that he would point out to the U.S. Government that paragraph 3 of FEC 007/3 should not be construed to authorize any action against the Emperor as a war criminal.

“The Commission approved FEC 007/3, with the understanding that the directive to be forwarded by the U.S. Government to the Supreme Commander would be so worded as to exempt the Japanese Emperor from indictment as a war criminal without direct authorization.”

61. It was transmitted to the State–War–Navy Coordinating Committee (SWNCC) on April 9 and by SWNCC to the Joint Chiefs of Staff on April 12 for SCAP.
62. See enclosure 4 to SWNCC 57/3. September 12, 1945, Report approved by SWNCC on October 2, 1945, Foreign Relations, 1945, vol. vi, p. 932.
63. For documentation on the Japanese attack at Mukden, see Foreign Relations, Japan, 1931–1941, vol. i, pp. 1 ff., and Foreign Relations, 1931, vol. iii, pp. 10 ff.
64. For documentation on the Japanese attack at Marco Polo Bridge, near Peiping, see Foreign Relations, Japan, 1931–1941, vol. i, pp. 313 ff., and Foreign Relations, 1937, vol. iii, pp. 128 ff.
65. New Zealand Minister and representative on the Far Eastern Commission.