[Bookmark] Tracing Asia-Pacific’s Woes to the Mishandled Tokyo War Crimes Trial

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As the latest national war memorial service approaches on August 15, it is a good time to think about how differently modern Japanese history could have been if the Tokyo War Crimes Tribunal (“Tokyo Trial”) had been handled differently, more along the lines of the International Military Tribunal of Nuremberg (“Nuremberg Trial”).

For someone trained in the law, reading the histories of the Tokyo Trial challenges everything lawyers are taught about how justice is supposed to be rendered under the rule of law. The flaws in the trial structure, participant selection, construction of the charges, and conduct of the proceedings in the trial are obvious and numerous. While in no way exculpatory to the decisions made to resort to war, these flaws contributed heavily to the numerous lingering issues that plague Japan today.

The stated intention was to closely follow the earlier Nuremberg Trial as a model, but flaws arose when they veered off course.

At the same time, the goal of the proceedings was to assign accountability and punish the individuals deemed responsible for the war, with a view to ensuring Japan would never experience war again. In that sense, the trial was successful.

So let’s walk through how the proceedings were set up and managed, with some comparisons to the earlier Nuremberg Trial.

Makeup of the Justices

In Nuremberg, there were four justices, representing each the United States, the United Kingdom, France, and the Union of Soviet Socialist Republics.

In Tokyo, there were 11 justices, representing the countries that signed Japan’s instrument of surrender, albeit the USSR had been at war with Japan for a grand total of seven days before Tokyo’s surrender. The countries that brought the trial were the U.S., the U.K., France, the USSR, Holland, Australia, Republic of China (not the People’s Republic of China), Canada, and New Zealand, as well as India and the Philippines, which were not sovereign nations before 1945.

Qualification and Conflicts of the Justices

The justices from China and Russia were not judges in their home countries, but rather a politician and military officer, respectively. The Russian judge spoke neither English nor Japanese and had his own personal interpreters.

The judge from the Philippines was a victim of the Bataan Death March and a POW. The Australian judge had been the Australian war crimes commissioner during the war.

These conflicts of interest would have disqualified a judge from sitting on similar cases in their home countries. However, while defense attorneys objected, they were overruled as the justices had been appointed by their home country.

Since all judgments and sentences ー and many other decisions ー were based on a simple majority, having four justices with questionable backgrounds was not an irrelevant concern.

How Decisions Were Made

In Nuremberg, you needed a quorum of all four judges to make decisions. In Tokyo, as long as six of the judges were present, a matter could be taken up and decided. Many of the 11 judges were not present when significant decisions were rendered, and indeed some were absent for extended periods during the two and a half years of the Tokyo Trial.

For judgments and sentences, in Nuremberg, you needed three out of the four to agree. In Tokyo, a simple majority of six could issue judgments and sentences — a far lower standard.

Unanimous votes are the general rule, most especially for rendering sentences of death. In Nuremberg, you needed three of four to convict. In Tokyo, it only took six of the 11 to approve a death sentence.

There Were Many Other War Crimes Trials

Conventional war crime trials against Japan had been underway in 50 locations around Asia since the end of 1945. In those trials, 5,700 Japanese, and about 300 Korean and Taiwanese had been indicted. About 985 were executed and another 475 were given life sentences.

These proceedings included those general officers who were directly in the line of responsibility, and officers in the field during the most notorious events in Nanjing, Bataan, Changi, Southeast Asian POW camps, and others. About 1,000 were acquitted and approximately 300 never went on trial.

Tokyo Trial: Seeking Those Responsible for the War

The Tokyo War Crimes Trial was set up to cover the Japanese “war leadership” who could be charged and convicted of crimes against peace or crimes against humanity and war crimes. When the trial was getting organized, there were 250 Japanese under detention, and others were added for a total of 260.

The U.S. prosecutors decided that, given the delays they had already experienced, the trial would be limited to 28 defendants. The criteria for final selection was well-known, thanks to a post-trial report from one of the U.S. prosecutors, Solis Horowitz. Those brought to trial were to meet the criteria of being individuals who:

Could be charged with committing crimes against peace;
Would represent one of the various branches of Japanese government (military, political, bureaucratic), and also represent one of the specific phases of the period covered by the indictment (1928-1945); and
Were determined in advance to have such overwhelming evidence of guilt available that no acquittal was conceivable.

After 10 weeks of going through the 260 potential defendants, the prosecutors selected 26 for indictment. Seventeen of the 26 were military officers, and nine were civilians.

The Russian prosecutor, however, arriving late ー just a few days from when the formal indictment was to be issued ー insisted that five individuals be added, and apparently as a gesture of cooperation, two of the five were added: Mamoru Shigemitsu, a career diplomat, and Yoshijiro Umezu, general of the Kwantung Army that faced Russia in East Asia throughout the war. That brought the new total to 28 defendants.

Those Not Chosen

Most notably absent from among those Japanese who were potential candidates for prosecution was the Showa Tenno (Emperor Hirohito). That was a political decision that General Douglas MacArthur personally took credit for.

There were other interesting features, as well. In contrast to Nuremberg, no Japanese industrialists and no political leaders of the wartime industrial effort were included.

Also, Shiro Ishii, the senior officer and chief scientist in charge of the notorious biological warfare Unit 731, was excluded. In this case, the reasons were similar to the absence of German atomic bomb and rocket engine scientists from the Nuremberg Trial, to wit, because they had knowledge of national security that was of interest to the allied powers.

*Sugamo prison, where defendants and potential defendants were held.*

Charges Against the Defendants

Putting aside the usual discussion of the ex-post facto nature of the charges that crimes against peace and humanity did not exist in Japan before 1945, charging Tokyo defendants with “conspiracy to commit” those crimes was a critical decision.

This was particularly interesting as only Anglo-American legal systems recognized a crime called “conspiracy.” The justices from France and other countries that did not recognize conspiracy as a separate crime objected, but they were overruled.

This was important to the Tokyo prosecutors as the charter under which they were operating was very closely modeled after the Nuremberg Charter, but in Japan there was no Hitler, no Nazi party, no long stretch of the war period where the same Nazi leaders were in charge, no centralized planning and direction of a holocaust. Conspiracy allows prosecutors to cast a wider net.

In Anglo-American law, conspiracy also allows for relaxation of procedures and rules of evidence, allowing a lower standard of evidence against a defendant. Article 13 of the Tokyo Charter, essentially identical to the Nuremberg Charter, indicated that, “The Tribunal shall not be bound by the technical rules of evidence.”

In short, the normal rules of evidence applicable to trials in the U.S. or the U.K. were discarded both in Nuremberg and Tokyo. That would have been seen to be fair if handled consistently. The Nuremberg Trial, in fact, remained consistent to the rules of evidence it established as the trial began.

Halfway through the Tokyo Trial, the justices changed the rules of evidence from “authenticated evidence” to the “best, most authenticated available.” Not even the justices thereafter understood what the exact rules were.

Unlike Nuremberg where the Nazi Party and Holocaust provided a coherent structure to support a conspiracy charge, in the case of the Tokyo Trial, the alleged conspiracy for which 23 of 25 defendants were eventually convicted was that they had played a part in a conspiracy commencing from 1928, for which there was a group (the total numbers and members of the group were never named) who were continuously preparing a plan for an aggressive war to take control over the western Pacific, South and Indian Ocean. And the indicted leaders were responsible for all acts performed by any person in execution of the plan.

The conspiracy charges were brought regardless of whether the individual defendant personally knew of the acts or the persons committing them, or even whether they were in positions of leadership responsibility when the actions took place during those 17 years.

Over the 17-year period of this ill-defined conspiracy with its ever changing cast of characters, from Tanaka Giichi in 1928 to Koiso Kuniaki in 1945, there had been 15 different prime ministers and hundreds of different individuals in their cabinets. Likewise, the senior imperial army and naval senior officers were changed frequently throughout the period.

The contrast with Nuremberg is especially striking. Despite this, two of the defendants were convicted solely on the conspiracy charge and given life sentences.

The other quite curious set of charges involved Japan’s alleged aggressive war against the Soviet Union. During the entire period of 1928 to 1945, there were only two military border incidents between Japan and the USSR that took place, in 1938 and 1939. One lasted 14 days and the other five months. Both led to a Japan defeat, and were eventually settled by an agreement between the parties in the mid-1940s. The USSR and Japan then entered into a non-aggression pact in 1941.

There was never any war until the USSR unilaterally ripped up the non-aggression pact that was to expire in April 1946 and declared war on Japan on August 8, 1945. The declaration came after Nagasaki and seven days before Japan formally surrendered. And yet three of the defendants were found guilty of aggression against the USSR.

Reaching the Verdicts

Of the original 28 defendants, two died during the trial and one was held mentally unfit. Every one of the remaining 25 was convicted of one or more of the five sets of charges. Seven were sentenced to death, 16 received life sentences, one a 20-year sentence and, the USSR’s late entry, Mamoru Shigemitsu, received seven years.

But what is perhaps most interesting about the verdicts is how the justices reached those decisions.

In Nuremberg, each of the judgments were unanimous. In Tokyo, it was quite mixed.

One justice found all defendants innocent. One found all defendants not guilty by reason of defective procedures. One found that career diplomat Koki Hirota (foreign minister 1933-1936, prime minister 1936-1937) and four others were entirely innocent of all charges.

One justice rejected all death sentences. Of the seven death sentences actually issued and carried out, one, Hirota’s, was on a 6-to-5 vote, and the other six were on votes of 7-to-4. (Of the 10 possible charges, Hirota was found guilty of conspiracy, a war against China, and “disregard of the duty to secure observance of laws of war” — he was foreign minister during the fall of Nanjing.)

In short, seven of the 11 justices drove the final verdicts and sentences. Of the seven, six simply supported the majority opinion, but the justice from the Philippines, who was a victim of the Bataan Death March, issued a separate concurring opinion that the majority had disregarded too many counts and some of the sentences were too lenient.

In the Post-Trial

The Tokyo Trial ended with this first and only trial. The Nuremberg Trial of the 24 senior German leaders was followed up with 12 additional defendant-focused trials, such as the “doctors trial,” which totaled 199 military, government, industrialist, and medical professionals — 161 were convicted and 37 were sentenced to death. All 13 Nuremberg Trials were completed in just three years, finishing by 1949.

In comparison, the 232 detainees kept in Sugamo Prison who were not tried were gradually released over the duration of the Tokyo Trial, and were all freed by 1948 by an order of General MacArthur.

In 1950, MacArthur ordered the reduction of all sentences by one-third, and life sentences reduced to a maximum of 15 years.

One provision in the San Francisco Peace Treaty of 1951 prohibited Japan after regaining its independence from changing the sentences of the 25 without permission of a majority of the 11 countries who sent justices to the tribunal. By 1954, Secretary of State John Foster Dulles had reduced the number of years it took to become eligible for parole from 15 to 10 years. Finally, by April 1957, permission had been received to parole all of the remaining prisoners in Sugamo.

In the end, unless you were executed, even those with life sentences were released within 12 years of the end of the war, and less than 8 years from the end of the trial.

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Continues in Part 2.

Author: Edo Naito