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 [Page 424] 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,
[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 [Page 425]
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, [Page 426] 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.
[Page 428]
“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.”
