Foreign Relations of the United States, 1948, The Far East and Australasia, Volume VI

740.00116 PW/11–2348

The Acting Political Adviser in Japan (Sebald) to the Secretary of State

No. 743

Tokyo, November 23, 1948.
[Received December 6.]

Sir: I have the honor to forward¹ as an accompaniment a single copy of the judgment of the International Military Tribunal for the Far East; the judgment includes a determination of the applicable law, a discussion of the facts, findings, and verdicts. The sentences were not made part of the judgment. The four separate opinions by the President of the Tribunal and members from the Philippines, France, The Netherlands, and India, are also forwarded in single form. Five copies of a press release issued by this Headquarters in summary of the Tribunal’s judgment are forwarded. Additional copies of the judgment and opinions will be forwarded when available.

Indictments were returned against twenty-eight major Japanese war criminal suspects on April 29, 1946; the judgment was read in open court from November 4 to November 12, 1948; and the sentences were read on November 12, 1948. The Tribunal sentenced seven of the accused to death by hanging—Doihara, Hirota, Itagaki, Kimura, Matsui, Muto and Tojo; sixteen were sentenced to life imprisonment—Araki, Hashimoto, Hata, Hiranuma, Hoshino, Kaya, Kido, Koiso, Minami, Oka, Oshima, Sato, Shimada, Shiratori, Suzuki and Umezu, Togo was sentenced to twenty years imprisonment and Shigemitsu to seven years imprisonment. Two of the accused, Matsuoka and Nagano, died during the trial, while Okawa was declared unfit to stand trial.

A brief summary of the judgment follows.

Establishment and Proceedings of the Tribunal. The international authority empowering the Supreme Commander for the Allied Powers to establish the Tribunal was described: the Cairo Declaration, the Potsdam Declaration, the Instrument of Surrender, the Agreement of the Moscow Conference of Foreign Ministers in 1945, and a directive from the United States Government later incorporated in a Far Eastern Commission policy decision. Pursuant to this authority the Supreme Commander established the Tribunal in January 1946 and approved its Charter.

The judgment summarized the fifty-five counts of the indictment and noted several of the major problems confronting the Tribunal such as the extensive field of time and place involved, language difficulties, and decisions in respect to evidence submitted.

The Law. The Tribunal held that the law of the Charter was decisive and binding on it and that the exercise by the Allied Powers of the right to create tribunals with certain powers to try and punish war criminals was within the limits of international law.

The Tribunal relied on the opinion of the International Tribunal at Nuremberg to dispose of four defense challenges to its jurisdiction;

1. The defense argued that there is no authority to adjudicate “crimes against peace”. The Tribunal answered that the Charter of the Nuremberg Tribunal, which was virtually identical with that of the Tokyo Tribunal and which included counts in regard to aggressive war, was not an arbitrary exercise of power but was the expression of international law existing at the time of its creation.

2. The defense argued that aggressive war is not per se illegal and that the Pact of Paris of 1928 does not constitute war a crime. In answer it was stated that the renunciation of war as an instrument of national policy by nations signatory to the Pact of Paris necessarily involves the proposition that such a war is illegal in international law and those who plan and wage such a war are committing a crime in so doing.

3. It was argued that war is an act of a nation not involving individual responsibility. The Tribunal answered that representatives of a state are not protected by their official position from punishment of acts condemned as criminal by international law.

4. The defense claimed that the provisions of the Charter were ex post facto legislation and therefore illegal. The Tribunal replied that the principle “No crime if there is no law” is a principle of justice, not a limit on sovereignty, and that it would be unjust not to punish those who in defiance of treaties have attacked neighboring states without warning.

The defense adduced three additional challenges to the Tribunal’s jurisdiction which the Tribunal considered of a substantial nature:

5. That only Conventional War Crimes as recognized by international law at the date of the Potsdam Declaration (July 26, 1945) could be prosecuted. The Tribunal held that aggressive war was a crime in international law long before the date of the Potsdam Declaration and noted that the Japanese Government was aware of this.

6. That killings during a war are the normal incidents of war and are not murder except where they are in violation of the rules of warfare or the laws and customs of war. The Tribunal postponed its decision of this issue but ultimately held that the count in the indictment for murder could be included in the counts for waging aggressive war; the count for murder was not rejected.

7. That four of the accused were prisoners of war and hence triable by courts-martial as provided by the Geneva Convention of 1929 and not by the Tribunal. The Tribunal relied on the opinion of Chief Justice Stone of the United States Supreme Court in the case In Re Yamashita holding that the relevant provisions of the Convention applied only to offenses committed while the defendant was a prisoner of war. Thus it was held that the Convention was not applicable.

The Tribunal then analyzed the responsibility of government officials for war crimes against prisoners, holding that responsibility rests with the Government having prisoners in its possession, including the Cabinet as well as military and civilian officials concerned with prisoners, and that this responsibility requires that an effective system for treatment of prisoners must be established and its continued and efficient working insured.

The Tribunal at this point rejected thirty-eight of the fifty-five counts of the indictment, holding in effect that conspiracy to plan and wage aggressive war involved the actual planning and preparation and that the waging of aggressive war involved the initiating of it. It was also held that under the Charter conspiracy is limited to conspiracy to commit crimes against peace only. Verdicts were finally returned on the basis of only ten counts.

Chapter III—Obligations Assumed by and Rights of Japan. The Tribunal summarized the principal international agreements affecting Japan’s foreign relations between the Treaty of Shimonoseki in 1894–95 and 1930.

Chapter IV—Military Domination of Japan and Preparation for War. The Tribunal here described—from the point of view of the activities of the accused—the course of Japanese history between April 1927, the first victory of the expansionists, and the conclusion of the Tri-Partite Alliance on September 27, 1940.

The Tribunal emphasized the following points: the advocacy by Okawa with the support of military officers like Itagaki of the doctrine that Manchuria was Japan’s lifeline; establishment as settled policy under the Hirota Cabinet from March 1936 to February 1937 of the Army scheme for a New Order in East Asia, particularly as outlined in the five ministers’ statement of August 11, 1936; Tojo’s forcing of the decision by the General Staff in 1937 to make war on China; Japan’s continually aggressive attitude toward the Soviet Union; development of treaty and ideological ties with Germany, particularly fostered by Oshima, Hiranuma, Shiratori, and Itagaki; the activities of the Yonai Cabinet from January to July 1940 are described in detail—Koiso’s and Arita’s plans for expansion to the South, Shigemitsu’s plan for neutrality in the European War in order to increase Japan’s prestige in Asia; and finally the political and military actions of the second Konoye Cabinet from July 1940 to July 1941, which showed that the conspirators were determined to extend the domination of Japan over a huge area and population and to use force, if necessary, to accomplish their aims.

Chapter V—Japanese Aggression Against China. This Chapter described Japanese aggressive activities in China from the time of preparations for the attack in September 1931 to December 1941.

Doihara, Itagaki, and Hashimoto were ringleaders in the plot to attack China, while Oshima, Koiso, Muto, Umezu, Hata, and Araki held staff positions in Tokyo and Minami was War Minister at the time of these preparations. Pu Yi was virtually forced to become nominal leader of an alleged independent state in Manchuria, the independence movement and the Chinese collaborators being sustained by Japanese military might alone. The Tribunal supported the findings of the Lytton Commission. Hoshino was the guiding spirit of the economic exploitation of Manchuria. Doihara’s connection with illegal drug traffic in Manchuria was accepted as proved. The Hirota Cabinet supported Army expansionist policies which precipitated the Lukou-chiao Incident in 1937. Doihara controlled plans for establishment of the Wang Ching-wei government in Peking [Nanking]. Tojo at all times figured prominently in the operations against China as a military commander in Manchuria, as War Minister, and finally as Prime Minister.

Chapter VI—Japan’s Policy toward the USSR; Manchuria the Lifeline in Japan. The Tribunal summarized Japanese attitudes and statements in regard to the Soviet Union, plans and preparations for war on Soviet areas, the Lake Khassan and Nomonhan attacks upon Soviet forces by Japan, and the uncandid policy of the Japanese Government in signing the Neutrality Pact of April 1941 between Japan and Russia. It opened by stating that the intention to undertake a war of aggression against the USSR had been shown to be one of the basic elements of Japan’s military policy.

A secret agreement to the Anti-Comintern Pact created a limited military and political alliance of Germany and Japan against the USSR.

Muto and Tojo were active in formulating strategy and preparations for war on the Soviet Union, plans which the Tribunal said were clearly offensive and aggressive. Itagaki was instrumental in planning the Japanese attack at Lake Khassan; that the Japanese initiated hostilities either to test Soviet strength or to seize strategically important territory was established to the Tribunal’s satisfaction. It was also clear that Hiranuma and Itagaki had full knowledge of the situation at Nomonhan, and they did nothing to prevent continuation of the conflict.

The Tribunal held that it was not necessary to decide whether or not Outer Mongolia was a sovereign state.

Chapter VII—The Pacific War. The Tribunal described Japanese activities in 1940 and 1941 which culminated in coordinated Japanese attacks against the United States and the British Commonwealth, and invasion of the Netherlands East Indies.

In October 1940 the Japanese decided to penetrate into the entire Pacific area west of Hawaii, excluding the Philippines and Guam, in order to avoid war with the United States for the time being. Pressure was put on French Indo-China and the Netherlands while military conversations were carried on by Oshima and Matsuoka with German officials. A plan for attack on Pearl Harbor was under study as early as January 1941. Diplomatic negotiations with the United States through Ambassador Nomura indicated that Japan had no intention of yielding any gains or privileges. The Japanese Navy in late May 1941 began training and practice for the attack on Pearl Harbor.

An Imperial Conference of July 2, 1941, attended by Tojo, Suzuki, Hiranuma, and Oka decided to continue diplomatic negotiations while final preparations for the attacks on Pearl Harbor and Singapore were completed. An Imperial Conference of September 6 reaffirmed this decision, adding that, if Japan’s demands were not met by the beginning of October, a decision on the opening of hostilities would be made.

When the time for this decision arrived on October 12, 1941, Konoye resigned as Prime Minister rather than commence war, a course which Tojo was strongly urging. Tojo became Prime Minister on October 18 and carried on intensive preparations for war, which included Navy orders on November 3 for a southern advance covered by an attack on Pearl Harbor.

Alternative proposals by Japan for a general settlement of differences were rejected by the United States, whose counter-proposals were in turn rejected.

A liaison conference on November 30 agreed that rejection of these counter-proposals should not destroy the element of surprise in Japan’s attack on the United States. An Imperial Conference sanctioned this decision. On December 2 Imperial Headquarters issued an order designating December 8 as X–day. The Japanese task force had been on its way to Pearl Harbor since November 26.

Coordinated attacks were carried out against Kohta Baru, Pearl Harbor, Singapore, Guam, and Hongkong, and the note rejecting the United States’ counter-proposals was submitted after these attacks had started.

The Tribunal at this point in its judgment applied the law as determined in Chapter II to the facts as found in Chapter VII; it decided that the leaders of Japan in the years 1940 and 1941 had waged wars of aggression against France, Britain, the United States of America (including the Philippines), and the Netherlands.

The Tribunal held that it was unnecessary to decide charges in the indictment based on the view that Japan had attacked Great Britain and the United States of America without previous and explicit warning for the reason earlier stated that charges of conspiracy to commit and of waging aggressive war had been made out against Japanese leaders. The Tribunal by way of dictum observed that Hague Convention III was poorly drawn and did not sufficiently define what was meant by previous and explicit warning (see this Mission’s despatch no. 517, August 13, 1948²). The Tribunal additionally held that since the waging of aggressive wars is a major crime, no good purpose would be served by convicting any defendant of that major crime and also of murder eo nomine.

Defense contentions that Japan had to go to war in self-defense were rejected as a repetition of Japanese propaganda.

Chapter VIII—Conventional War Crimes. The Tribunal summarized the evidence by stating that atrocities were committed by the Japanese Army and Navy on a scale so vast and on so common a pattern that it could be concluded only that they were secretly ordered or willfully permitted by the Japanese Government or members thereof or by the leaders of the armed forces.

The Japanese Government refused to acknowledge that hostilities in China constituted a war and pursued a policy of “mental terror” among the enemy forces and civilians in China, the worst single event of which was the “rape of Nanking”. Matsui was commanding general of the forces which took Nanking and Muto was on his staff; Cabinet Ministers Hirota, Umezu, and Kaya received reports of these atrocities.

The Tribunal described the kind and extent of criminal practice followed by the Japanese in all theaters of war: murder of captured aviators; massacres of prisoners of war, civilian internees, the sick, medical personnel, and the civilian population; death marches of prisoners; vivisection; shooting of naval survivors; starvation of prisoners and internees; excessive punishment; and failure to forward to Protecting Powers lists of prisoners and internees. Tojo explained his failure to act in the case of the Bataan death march, although he had heard of the march, by saying that the commander of an expeditionary force had considerable autonomy. The vicious treatment of prisoners and native workers employed in the construction of the Burma-Siam railway was recounted.

Shigemitsu and Togo as Foreign Ministers attempted to explain away charges by Allied nations that Japan was treating prisoners and civilian internees illegally. Tojo, Doihara, Hata, Itagaki, Kimura, Muto, and Umezu all held responsible positions in regard to the treatment of prisoners.

The Tribunal dismissed defense contentions that Japan was not bound by certain conventions for the treatment of prisoners and internees by holding that the general principles of law exist independently of the conventions.

Chapter IX—Findings on Counts of the Indictment. The Tribunal found that the existence of the criminal conspiracy to wage wars of aggression as alleged in count 1 had been proved, the object of the conspiracy being to obtain Japan’s domination by preparing and waging wars of aggression.

The counts of the indictment were analyzed. Count 5—conspiracy with Germany and Italy to dominate the world—was held not to have been proved. The Tribunal decided that it would consider only the following counts of the indictment:

1. Conspiracy to wage wars of aggression.

27. Aggressive war against China.

29. Aggressive war against the United States.

31. Aggressive war against the British Commonwealth.

32. Aggressive war against The Netherlands.

33. Aggressive war against France.

35. Aggressive war against the USSR at Lake Khassan.

36. Aggressive war against the USSR at Nomonhan.

54. Ordering, authorizing, and permitting violations of laws and customs of war against armed forces, prisoners, and civilian internees.

55. Reckless disregard of legal duty to secure observance of the laws and customs of war.

It is worth noting at this point that the Tribunal simplified the prosecution’s theory of indictment almost to that followed at Nuremberg, where there were but four counts: conspiracy to wage aggressive war, waging aggressive war (presented as seven separate counts at Tokyo), war crimes, and crimes against humanity.

Chapter X—Verdicts. Each of the twenty-five defendants was thereupon found guilty or not guilty of the charges based on the above counts preferred against him.

Sentences. The sentences indicated at the beginning of this despatch were thereupon read; these sentences were not made part of the written record of judgment.

The separate opinions were not read in court.

Separate Opinion of the President of the Tribunal, Chief Justice Sir William Webb, Member from Australia. This opinion briefly discussed the law of the Tokyo trials, particularly the validity of the Charter, a nation’s natural right of self-defense, the concept of aggressive war, and conspiracy to commit a crime against peace. It recorded no dissent.

The President stated that international law may be supplemented by rules of justice and general principles of law, and that rigid positivism is no longer in accordance with international law.

The President suggested that perhaps life imprisonment would have been a preferable sentence for those Japanese war criminals sentenced to death. He noted that the Nuremberg Tribunal appeared to consider that conviction of accused on charges involving aggressive war only did not justify a sentence of death, for the probable reason that the Tribunal took into account the fact that aggressive war was not universally recognized as a justiciable crime when these accused made war. As to punishment of war crimes and crimes against humanity, he noted that the main purpose of punishment for an offense is to deter others and that this purpose might better be served in this case by life imprisonment under sustained conditions of hardship.

In regard to the immunity of the Emperor, the President observed that a British court would probably take into account that the leader in the crime though available for trial had been granted immunity; he added that in such a case the court would, where it must by law impose capital punishment, probably exercise the prerogative of mercy to save the lives of the condemned. The President stated in effect that since the Emperor acted as a constitutional monarch with very considerable powers, particularly as evidenced by his decision in 1945 that the war be ended, and since he did not withhold his authority where this authority was required for war, he could not be excused for committing a crime at international law on the advice of his ministers. He did not suggest that the Emperor should have been prosecuted and added that the Emperor’s immunity was no doubt decided on in the best interests of all the Allied Powers.

Concurring Opinion by Member from the Philippines, Mr. Justice Delfin Jaranilla. This opinion offered disagreement with certain legal conclusions reached by the majority, particularly in regard to the decisions that conspiracy as defined in the Charter did not apply to conventional war crimes and crimes against humanity, that counts in the indictment on planning and preparation of aggressive war need not be considered, and that murder in the indictment could be considered as part of the charge of waging aggressive war.

The opinion also considered and rejected certain defense contentions in regard to the validity of the Tribunal, the ex post facto argument, and the individual responsibility of the defendants.

The Member from the Philippines also offered his opinion that a few of the penalties were too lenient, and not exemplary and deterrent.

Partial Dissenting Judgment of the Member from France, Mr. Justice Bernard. This opinion disclosed the procedure followed by the Tribunal in its deliberations. A majority of seven judges formed a committee to draft the Tribunal’s findings of facts; this draft was shown to the minority of four judges but there appears to have been no oral discussions by the entire Tribunal of this part of the decision. Judge Bernard, who was in the minority of four judges, criticized this procedure.

Judge Bernard also criticized the prosecution’s decision to try all the suspects at the same time. He gave his opinion that a preliminary inquest by a magistrate independent of both prosecution and defense would have been beneficial. He also indicated the opinion that the failure to indict Emperor Hirohito, the principal author of the conspiracy, was an error.

Judge Bernard concluded that, because of the above defects and because of the vagueness in law and in argument of terms like conspiracy and aggressive war, he could not formulate a definite opinion concerning questions raised by accusations of crimes against peace as well as accusations of war crimes and crimes against humanity.

No specific dissent was entered by Judge Bernard.

Partial Dissenting Opinion of the Member from the Netherlands, Mr. Justice Roling. This opinion, which extends to 249 pages, commented in some detail on various questions of law and fact raised by the Tokyo trial. In particular, the legal portion of the opinion criticized that part of the Tribunal’s constitution which empowers the Supreme Commander for the Allied Powers to alter sentences, on the apparent ground that this power reflects the authority of the victorious nations and derogates from the obligation upon the nations of the world and upon the Tribunal to adjudicate under international law.

The opinion also contended that the Tribunal’s jurisdiction related only to the Pacific war and hence could not include Japanese struggles with the Soviet Union, which were not contemplated by the Instrument of Surrender and which had been concluded by treaty.

In regard to individual cases, this opinion stated that life imprisonment is the appropriate punishment for commission of crimes against peace and that death is appropriate for commission of conventional war crimes.

The life sentences of Araki, Hashimoto, Hiranuma, Hoshino, Minami, Kaya, Koiso, Oshima, Shiratori, Suzuki, and Umezu were therefore concurred in because they had been found guilty of waging aggressive war but not of any conventional war crime. The death sentences of Doihara, Itagaki, Kimura, Matsui, Muto, and Tojo were also concurred in because they had been found guilty of conventional war crimes.

Oka, Sato, and Shimada should have received death sentences for guilt of conventional war crimes.

Hata, Hirota, Kido, Shigemitsu and Togo should have been acquitted. Hata’s conviction was not supported by the facts. Hirota never advocated or conspired for domination of Asia by means of aggressive war, and the facts indicated that he had no responsibility for the war crimes committed by Japanese forces and that in the case of the rape of Nanking he made representations to Army officials that criminal activities be stopped. In the case of Kido, the facts failed to show conclusively that he actively supported the conspiracy to wage aggressive war, nor was his knowledge before or during the events, nor his power and duty to intervene and forestall war crimes, proved. Shigemitsu worked as a diplomat and statesman for peace rather than for war; as Foreign Minister he could not be held for permitting war crimes or disregarding any duty thereto, since he had no power in these matters and acted only as an agent for communication between foreign governments and the proper organs of the Japanese Government, Togo also worked for peace and like Shigemitsu entered the Cabinet during wartime solely with the intention of ending the war.

Dissenting Opinion of the Member from India, Mr. Justice Pal. This opinion, which is 1235 pages in length, dissents generally from the legal theories and disagrees with the facts upon which the judgment of the Tribunal is based. It is stated inter alia that the Allied Powers have not the legal right under international law to treat Japanese leaders as war criminals; that an international tribunal however established is not bound by the will of the conqueror; that war has not been made a crime in international law; that aggressive war is not definable; that the Charter is ex post facto law. The opinion concluded that each of the accused should have been found not guilty and acquitted.

It may be noted that Mr. Justice Pal’s opinion appears to adhere to the positivist theory of international law, which holds that national sovereignty is the basis of the international community and that consent to qualification of national sovereignty must not be presumed.

Respectfully yours,

W. J. Sebald

1. Enclosures not printed.
2. Not printed.