740.00116 PW/12–1048
The Acting Secretary of State to the Solicitor General (Perlman)
My Dear Mr. Perlman: You have requested the views of the Department of State as to whether the International Military Tribunal for the Far East is to be regarded as an international court appointed and acting under international authority, or as an American tribunal appointed and acting under the unilateral authority of the United States and specifically whether it regards the action of the Supreme Commander for the Allied Powers in proclaiming the establishment of the International Tribunal for the Far East, approving and amending the charter of that Tribunal, appointing as judges of the Tribunal the persons nominated by the individual governments represented on the Far Eastern Commission, and approving, after consultation, the sentences imposed by the Tribunal, as being in accordance with Paragraph [Page 926] 5 of the Far Eastern Commission policy decision of April 3, 1946, and as taken in accordance with the authority and direction of the Far Eastern Commission.
In answer to your first question, the Department of State regards the International Military Tribunal for the Far East as an international court, appointed and acting under international authority.
The Potsdam Declaration of July 26, 1945 defining the terms for Japanese surrender, issued by the President of the United States, the President of the National Government of the Republic of China, and the Prime Minister of Great Britain stated that “stern justice shall be meted out to all war criminals.”
The Supreme Commander for the Allied Powers in Japan was appointed on August 13, 1945 by agreement of the President of the United States and Generalissimo Chiang Kai-shek, Prime Minister Churchill and Premier Stalin. In the view of the Department of State, this action of the President was taken in accordance with his powers as Commander in Chief and in execution of the control vested in him over the conduct of the foreign relations of the United States.
On October 4, 1945, the United States issued a directive to the Supreme Commander for the Allied Powers authorizing him to establish special international military courts for the trial of Far Eastern war criminals, subject to further authorization from the United States Joint Chiefs of Staff, in respect to the establishment of international courts for the trial of persons charged with crimes against peace. Such authorization was subsequently given to him provided that nominations of judges for such tribunal were received from other Governments. The directive of October 4, together with the statement of the policy of the United States on which it was based was circulated on October 24, 1945 to the Far Eastern Advisory Commission, which preceded the Far Eastern Commission and which was composed of representatives of the United Kingdom, the United States, China, France, the Netherlands, Canada, Australia, New Zealand, India and the Philippine Commonwealth. Previously, on October 18, 1945, the Department of State had also transmitted a copy of the statement of the policy of the United States to the governments signatory to the Japanese surrender, and requested them to designate persons qualified for membership on the international military courts contemplated in order to permit the Supreme Commander for the Allied Powers to appoint suitable members. On January 19, 1946, the Supreme Commander issued a proclamation stating that “there shall be established an International Military Tribunal for the Far East.” On the same day, in General Orders No. 1, he approved the charter of the Tribunal, pursuant to which, on February 15, 1946 he appointed judges on the Tribunal.
[Page 927]The Department of State regards the tribunal established pursuant to the Proclamation and General Orders just mentioned as an international tribunal appointed under international authority. In its view, a tribunal appointed by an international officer, consisting of members nominated by the governments which he represents and which at the time of such nomination were fully informed of the directive and statement of policy pursuant to which he acted, is an international tribunal.
In the meantime, by the Moscow Agreement of December 27, 1945, the Far Eastern Commission had been set up by the United States, the United Kingdom and the Union of Soviet Socialist Republics, with the concurrence of China. On April 3, 1946, the Far Eastern Commission adopted a policy decision regarding the apprehension, trial and punishment of war criminals in the Far East which provided, inter alia, that the Supreme Commander of the Allied Powers “should have:
- (a)
- power to appoint special international military courts” and that he “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.” The United States Government prepared a directive in accordance with this policy decision which was transmitted on April 23, 1946 to the Supreme Commander through the United States Joint Chiefs of Staff, as provided in Article III–1 of the terms of reference of the Far Eastern Commission. Thereafter, on April 26, 1946, the Supreme Commander issued General Orders No. 20 which specifically “superseded” General Orders No. 1 and incorporated the requirements of the Far Eastern Commission policy decision in regard to the membership of any international court appointed by him which differed from the provisions as to membership set forth in General Orders No. 1. The Tribunal with which the indictment of the major Japanese war criminals was filed and which tried and convicted the accused was the Tribunal constituted pursuant to General Orders No. 20.
Accordingly, in reply to the second question referred to in the first paragraph of this letter, the Department of State considers that the Supreme Commander’s action in proclaiming that an International Military Tribunal for the Far East should be established and in approving the original charter and appointing judges thereunder was taken under international authority, was consistent with the subsequent policy decision of the Far Eastern Commission and was approved by that decision subject only to the requirement of two additional judges. The Department further considers that the Supreme Commander’s action superseding the original charter by an amended charter, appointing as judges of the Tribunal persons nominated by all of the individual governments represented on the Far Eastern Commission, and approving, after consultation, the sentences imposed by the Tribunal [Page 928] was taken specifically under the authority and policy direction of the Far Eastern Commission.
Sincerely yours,