DISSENTIENT JUDGEMENT OF JUSTICE R.B. PAL, TOKYO TRIBUNAL
INTRODUCTION AND TABLE OF CONTENTS
--
DISSENTIENT JUDGEMENT OF JUSTICE R.B. PAL, TOKYO TRIBUNAL
INTRODUCTION AND TABLE OF CONTENTS
--
INTERNATIONAL
MILITARY TRIBUNAL
FOR THE FAR EAST
DISSENTIENT JUDGMENT
OF
JUSTICE PAL
KOKUSHO - KANKOKAI, Inc.,
Tokyo
1999
[photo]
Radha Binod Pal (Calcutta, 1948)
DISSENTIENT JUDGMENT
OF
JUSTICE PAL
First published in 1999 by
Kokusho- Kankokai, Inc
2-10-5 Shimura, Itabashiku,
Tokyo, Japan
174-0056
ISBN4-336-04110-5
Printed in Taiwan
--
[NOTE: The book, originally published in Calcutta in, I believe, 1948, is now out of print, and appears impossible to obtain anywhere in the world. It can occasionally be found in large law libraries.
The publisher in Taiwan does not reply to inquiries and appears to have become a language school. Emphasis below has been added by myself. I do not necessarily agree with all of the opinions expressed, particularly, for example, the reference to the "German Emperor", aka "Kaiser", below, based on a single sentence taken out of context-- a sentence ridiculed all over the world at the time -- a fact which should in itself have been sufficient to arouse suspicion.
More on this and other matters anon.
De minimis non curat lex. - C.P.]
FOREWORD
Akira Nakamura
Dokkyo University,
Japan
November 5, 1998
The first time I read Justice Pal’s dissenting judgment at the Tokyo trial was in the library of Tokyo University’s Institute of Social Sciences, on June 21, 1974. It was not in book form but a typewritten copy of over 1,200 pages, with the signature of Richard Harris, one of the thirty-odd American lawyers who had come to Tokyo in defense of the accused Japanese. He died on September 23, 1990, in Los Angeles, the news of which I read with a renewed feeling of gratitude to him as well as deepest sorrow.
Publication of Pal’s dissenting opinion at the Tribunal was prohibited during the Occupation years, and even after the allied Occupation was over and Japan had regained her independence, it failed to draw the attention of the Japanese except for a few who had special interest in the Tokyo Military Tribunal. In a word, it was almost forgotten among the Japanese.
Twenty-six years was long enough to affect the thought and opinions of the Japanese, especially when the media themselves, the people’s main source of knowledge and information, had been deeply influenced by the Tokyo verdict. Feeling the need to let the Japanese know about critical views on the Tokyo judgment, I determined to get Pal’s opinion published in handy book form so that it might be more widely read. I made extracts from the original, wrote notes on historical matters, and compiled them in two volumes. It was published by the Kenkyusha Publishing Company, Tokyo, in November 1976, as a textbook for college use, under the title ‘ In Defense of Japan's Case.’ It was just about one-tenth as long as the original, but anyhow it was the first time since the end of the Tokyo trial that Pal’s dissenting opinion got into print at all. It is a great pleasure to me that now, half a century after the Tokyo trial ended, not just extracts, but the full text of Pal’s dissenting judgment has been made available to be read widely by people and researchers of many different nationalities, thereby furnishing them an excellent opportunity to question and reexamine the “ time-honoured” conclusion of the Tokyo tribunal.
It exceeds my competence to make comprehensive explanatory comments on this voluminous work, and its juridical details are beyond my scope. To us of Japan, Justice Pal’s opinion is especially convincing and sometimes even moving because it is based upon a profound understanding of Asian history. Firmly believing that the happenings that led up to the war can be explained by other means than the existence of an over-all conspiracy or some aggressive design, he devotes the greater part of his judgment to the historical background of disputes, incidents and wars, so much so, in fact, that one might at times feel as if one were reading a history, not a verdict. As a judge representing India, which had long been under British colonial rule, Pal was strongly critical of Western colonialism, while, on the other hand, he naturally had a deep sympathy with the struggle of modern Japan against political and economic oppression by the Western nations. How many of us have read his few lines inscribed on a stone monument in the precincts of the Hon-sho-ji Temple in the city of Hiroshima? They run as follows:
"For the peace of those departed souls who took upon themselves the solemn vow at the salvation ceremony of oppressed Asia, 'Oh, Lord, thou being in my heart, I do as appointed by you.'”
1952. 11. 5
Radhabinod Pal
His verdict is also marked by his keen insight into the grave menace of communism. In fact, it is impossible to express any definite opinion on the complex background and causes of the Manchurian Incident or the China Incident without adequate knowledge of the communist movement then rampant in China. The Manchurian Incident, as I see it, is the result of long years of Sino- Japanese conflicts, mostly instigated or provoked by the Chinese communists, rather than the beginning or the first stage, as the Tokyo tribunal finds it, of Japan’s aggression against China and the Pacific area. In this sense, it was unfortunate that, due to highly political considerations, argument about communist activities in China was banned by the President of the Tribunal. I say unfortunate not only for Japan but also for the rest of the world because many of the conflicts and wars that have occurred after the Tokyo trial are attributable to communist provocations. Had the Tribunal allowed the defense more freedom to refer to the communist plots and activities and found the communist movement responsible for the war, the world at large would have become more watchful a gainst communist activities thereafter and have taken more effective measures to prevent wars arising from them.
One thing that Pal was especially concerned about regarding the war was the atomic bombing of Hiroshima and Nagasaki. On visiting Hiroshima in November 1952, four years after the Tokyo trial ended, he was reportedly shocked to know the meaning of the monumental inscription dedicated to the A-bomb victims: “Sleep peacefully, for we shall never repeat the mistake. ” “Why should the Japanese apologize to the Japanese?” he said with resentment, “It is not the Japanese who dropped the atomic bombs.” I would like to know what he would have said or, for that matter, what judgment the Tribunal would have passed on Japan if they had known at that time about the Emperor’s order to stop a project by the Japanese military to build an atomic weapon. The Emperor reportedly said that Japan should not be the first to make and use such an inhuman device, and thereupon the Japanese Army, by instructions from General Tojo, immediately gave up its A-bomb production project even at the cost of a possible final victory, while the U. S. decided to develop such a weapon and actually dropped two of them on Japanese cities just to shorten the war. Justice Pal goes as far as to say that “. . . if any indiscriminate destruction of civilian life and property is still illegitimate in warfare, then, in the Pacific war, this decision to use the atom bomb is the only near approach to the directives of the German Emperor during the first world war and of the Nazi leaders during the second world war. Nothing like this could be traced to the credit of the present accused.” The Tribunal condemned the atrocities and misdeeds committed by the Japanese, yet I would like to point out that the human race as a whole was then still at a moral low point as the use of the atomic bomb might indicate.
I have no space to refer to other important questions presented in his judgment, but I might safely conclude that his views on the Tokyo tribunal are founded on his firm belief in legal justice, on the one hand, and his profound thinking on man and history, on the other. There is an impressive episode about him that goes like this: at a reception to welcome Dr. Pal’s first visit to Japan since the Tokyo trial, some Japanese expressed their deep thanks for his “sympathetic” judgment. At this he reportedly said; “It is a misunderstanding to think that I wrote my verdict as a sympathizer with Japan. I did not write it out of sympathy for Japan nor out of hatred of the West. I just wrote what I believed to be right and just, neither more nor less. ”
A jealous lover of truth, Justice Pal had nothing but truth to guide him in trying the accused at the Tribunal, and yet the spirit of the court as a whole was not generous enough to listen to the reason and justice of the defeated. Seeing how much is made of, say, Iris Chang’s “The Rape of Nanking” in some parts of the world today, I cannot but question how far the world has progressed over the last half century in the search for truth as well as knowledge and reason. All the Japanese, including newspaper reporters and news cameramen, who were then in Nanking, admit that a large number of plain-clothes Chinese soldiers (unlawful belligerents) were executed by the Japanese troops, but unanimously assert that there were no large-scale or systematic atrocities committed against civilians. The strange thing is that, despite the world-famous tale of the holocaust of hundreds of thousands of Chinese or of knee-deep pools of blood in the city of Nanking, not a single panoramic photograph of heaps of corpses in Nanking is known to us nor is there even a single person who witnessed the scene of the holocaust. It may be safe, after all, to conclude that the repeated story of the slaughter of more than 300,000 Chinese civilians in Nanking is one of the biggest lies ever told in history. The same shameless lie that once deceived the military court at Tokyo and elsewhere, thereby sending a number of innocent Japanese to the scaffold, are still being blatantly repeated, producing a perverted sense of pleasure in some corners of the world.
Quoting in part from Justice Pal’s Dissentient Judgment, I would like to say that, fifty years being long enough time to “soften passion and prejudice”, the time is now ripe for “justice to require much of past censure and praise to change places.”
Akira Nakamura
Dokkyo University,
Japan
November 5, 1998
Monument to Justice R.B. Pal in Japan
For enlargement, click here
--
Note: I was unable to retain the original pagination on the Internet, so the following is more or less useless.
-C.P.
Part 2
CONTENTS
PART I
SUBJECTS PAGES
PRELIMINARY QUESTION OF LAW 5—107
Prosecuting Nations and The Defendants—Charges against
the accused in fifty-five Counts 5 9
CONSTITUTION OF THE TRIBUNAL :
The material questions of law for decision—Preliminary matters concerning the Tribunal constituted—Advisory Committee of Jurists at the Hague—Views of Professor Hans Kelsen 9 11
MATTERS BEYOND THE JURISDICTION OF THE TRIBUNAL :
Jurisdiction of one State over the acts of another State— Oppenheim, Hall and Garner’s views—Potsdam and Cairo Declarations—Defense claim to incidents outside the Jurisdiction of the Tribunal
LAW .APPLICABLE TO THE CASE :
Mr. Keenan’s opening statement of the law upon which the indictment is based—Comyns Carr’s address of 14 May 1946 against the preliminary objection of the Defense regarding the jurisdiction of the Tribunal—Instrument of Surrender 14 18
CHARTER, IF DEFINES WAR CRIMES ( i ) Constitution of Tribunal 18
( ii ) Jurisdiction and General Provisions 18—21
DEFINITION, IF BINDING ON THE TRIBUNAL :
International Military Tribunal—“a Judicial Tribunal” and not “a manifestation of power”—Moscow Declaration—Professor Hans Kelsen regarding the position of the victor 21 25,30 32
VICTORS , IF CAN GIVE LAW :
Prosecution reference to the judgment of Nuremberg Tribunal—Lord Justice Lawrence’s observations—how far acceptable—Professor Quincy Wright on “The Law of Nuremberg Trial” 21 29
SUBJECTS
THEORY OF SOVEREIGNTY OF THE VICTORS A Victor Nation’s power of legislation for war crimes as defined and determined by International Law—not sovereign of the international community—Sovereignty of Victor nation limited
Case of the accused—not one of subjugation but of complete defeat and unconditional surrender—A Military occupant not a sovereign of the occupied territory Mr. Justice Jackson’s observations in prosecuting the war criminals of the European Axis criticised
AGGRESSIVE WAR, IF A CRIME (i) Aggressive war, if illegal or criminal in international law up to 1914 — — 35—36
(ii) Aggressive war, if illegal or criminal in international law from 1914 to 1928, the date of the passing of the Pact of Paris 36—38
(Hi) Aggressive war, if illegal or criminal in international
law since the Pact of Paris — 38—40
“Crimes against Peace”—whether crime in International Law: “Just” and “Unjust” wars—Mr. Quincy Wright on "The Outlawry of War”—Senator Borah’s Resolution before the United States Senate—Hall and Oppenheim’s view—Conflicting results ^ ^
AGGRESSIVE WAR, IF MADE CRIMINAL BY THE PACT OF PARIS The Pact of Paris or the Kellogg-Briand Pact—The effect of the Pact of Paris—Reservation of the right of self-defense and self-preservation—Pact of Paris out of the category of Rule of Law 40 46
Right of Self-defense or Self-preservation—Hall, Rivier, Kaufmann, Westlake, Dr. Lauterpacht and the Pact of Paris — 46 50
The theory of Sovereignty in international law — — 50—51
Conception of Crime in international life—Pact of Paris and
War 51—53
AGGRESSIVE WVR , IF BECAME CRIMINAL BECAUSE OF THE PACT :
Lord Wright’s view considered—The views of Quincy
Wright, Dr. Lauterpacht, Dr. Scheuner, Mr. Finch 53 60
AGGRESSIVE WAR, IF BECAME CRIMINAL OTHERWISE
(i) By the development of customary law 60—62
(ii) Because of the international law being a progressive
system—characterization of International society by Prof. Zimmern 62 70
SUBJECTS
(in) By creative judicial discretion 70—71
(iv) By natural law—Hall’s conclusion 71—73
National Sovereignty—International organization and International Customary law-—Only a lost war is a crime 60 62
Mr. Comyns Carr’s characterization of the very foundation of international law—Lord Wright’s reference to the Progressive character of International law—Professor Zimmern in “The League of Nations and the Rule of Law” 62 66
Atom Bomb and The Second World War — 66—67
Views on “War Criminals—their Prosecution and Punishment” • •• 67—68
INDIVIDUAL RESPONSIBILITY IN RESPECT OF ACTS OF STATE Report by the Carnegie Endowment for International Peace 73—75 Mr. Quincy Wright on the “Outlawry of War” and Judge Manley O. Hudson on “International Tribunals, Past and Future”—Views of Professor Kelsen and Professor Glueck—Glueck’s opposite view expressed in his recent book “The Nuremberg Trial and Aggressive War”—the data on which the views are based—Mr. Finch on the
individual criminal responsibility in international law—
r 7 75—95
views examined
Professor Quincy Wright’s support to Nuremberg Judgment—
Mr. Trainin’s Article entitled “The Criminal Responsibility of the Hitlerites”—Thesis of Trainin reviewed— Conclusion 95 107
PARTII
WHAT is “AGGRESSIVE WAR” 111—137
Necessity of Definition 111—112
What is meant by an aggressive war—Various definitions suggested at different times—Paris Conference of 1936—Conference of 1938—MacMillan Committee—
Mr. Qiincy Wright and Dr. Lauterpacht on aggression—Convention for the definition of aggression ^ H8 Mr. Justice Jackson—aggression—Question of aggression
(ii) Chinee boycott (in) Neutrality question (iv) Economic sanction ( v) Legality of compulsive measures
(vi) Wars in violation of treaties etc.
(vii) Treacherous war
PART m
RULES OF EVIDENCE ANU PROCEDURE
Rule of Evidence—Hearsay Evidence—categories required
for admitting evidence 141 143
Kido’s diary and “Saionji-Harada Memoir” 144—147
Evidence in rebuttal—Probative value in evidence—Defense
objection with regard to Harada-Saionji memoir overruled—inadmissible evidence—the restrictive rules in determining the evidence
The Cardinal Rules of Examination of Witnesses—Best evi
dence rule — — 153 162
Lytton Commission Report and Commission in China—Defense contention—Evidence relating to the development of communism in China rejected 162 166
Chinese Boycott Movement and Lytton Commission Report—National responsibility in its relation to boycott—Question for consideration 166 173
Defense charge of inconsistency with regard to rulings on the question of admissibility of evidence 173—174
PART IV
OVER-ALL CONSPIRACY
FIRST STAGE
OBTAINING CONTROL OF MANCHURIA—MANCHURIAN INCIDENT
Prosecution reconstruction of the conspiracy—Murder of Chang Tso-Lin: "first overt act in the conspiracy”— facts in the chain of conspiracy—to what extent the conspiracy alleged has been established by the evidence adduced—Lytton Commission Report Over-population problem of Japan-—Treaty of 1902—Annexation of Korea—Second Alliance—Lansing-Ishii exchange of notes
Nine-Power Treaty of Washington-—Hall and Cheney Hyde—-Official statement of the British Policy Defense reference to incidents since the signing of Nine- power Treaty—Doctrine of clausula rebus sic stantibus—termination of the treaty obligation Happenings after the Manchurian Incident Murder of Chang Tso-lin: additional evidences
Mukden Incident of September 18, 1931—Observations of Lytton Commission discussed
Prosecution reconstructed picture of the alleged conspiratorial events leading to the Mukden incident Testimony of Tanaka Ryukichi Testimony of Shimizu and Fujita
March incident and Mukden incident—Testimony of Dr. Okawa
Defense evidence of General Minami : the statement of General Honj o : Deposition of Ishihara Common plan of conspiracy—mainly supplied by the testimony of Tanaka Ryukichi
Manchurian incident—evidence carefully considered—conduct of nations declined to treat this act as criminal— findings — 246 252
Dohihara, Hashimoto, Itagaki, Koiso, Minami and Okawa—
Prosecution characterization of Dohihara as a fore-runner of aggression—allegations against the accused examined—Conclusion 252 264
SECOND STAGE
THE EXPANSION OF CONTROL AND DOMINATION FROM MANCHURIA TO ALL THE REST OF CHINA 267—312
Developments of conspiracy after September 18,1931—how far can be said to have been the result of some conspiracy
ß
to what extent lead to over-all conspiracy 267—268
SUBJECTS PAGES
The Prosecution case regarding the Japanese expansion in Manchuria—the prosecution case examined—Lytton Commission’s Findings—Reason for setting up Puppet Government in Manchuria 268 281
The Expansion of Control beyond Manchuria—Marco Polo Bridge Incident—Prosecution summation—evidence of Tanaka Ryukichi—Defense contention 281 289
The Amau Statement—Military assistance to China—
Tangku Truce—Memorandum of Cordell Hull—Foreign Secretary Simon’s reference to Amau statement in Parliament 289 294
Kwantung Army’s Propaganda Plan — 294—297
The Hirota Policy—Tojo’s Telegram of 9 June 1937—the formation of the Kuomintang-Communist United Front— ‘Gentleman’s Agreement’ — 297 299
The utterances of Itagaki : “The Problem of Outer and Inner
Mongolia” 299—301
The Civil war in China : the Chinese National Boycott : the
development of Communism in China — 301—312
THIRD STAGE
THE PREPARATION OF JAPAN FOR AGGRESSIVE WAR INTERNALLY AND BY ALLIANCE WITH THE AXIS POWERS : PSYCHOLOGICAL PREPARATION OF THE NATION FOR WAR: RACE FEELING — 315—320
The organization of Japanese politics and public opinion for war—Change in the Japanese Educational Policy—
Racial Superiority 315 316
Professor Toynbee—“Race-feeling” and “Natives” 316—320 Atom Bomb and Selfish Nationalism 320
PSYCHOLOGICAL PREPARATION OF THE NATION FOR WAR:
MILITARIZATION OF EDUCATION — — 323—344
History of “Militarization of Education” put forth from the evidence and the Prosecution characterization of this as Militarization of Education not acceptable 323—324
Witness examined and documentary evidences 324—340
Defense witness Mr. YOSHIDA 340—341
Military Training—whether preparation for aggressive war
Disarmament 341—344
THE PREPARATION OF JAPAN FOR AGGRESSIVE WAR INTERNALLY AND BY ALLIANCE WITH THE AXIS POWERS : SEIZURE OF POLITICAL POWER — — 347—382
Fall of the Hirota Cabinet—Final stage of conspiracy depicted by the Prosecution with the formation of TOJO Cabinet—TOJO’s part in the fall of the KONOYE Cabinet—SHIMADA, TOGO and TOJO 374—382
THE PREPARATION OF JAPAN FOR AGGRESSIVE WAR INTERNALLY AND BY ALLIANCE WITH THE AXIS POWERS:
GENERAL PREPARATION FOR WAR — 385—408
General Preparation for war: Brigadier Quillium’s reliance on the evidence of Mr.J. G. Liebert 385—387
The Defense opening statement of Mr. TAKAHASHI and the deposition of Messrs YOSHINO, OKADA,
OWADA, ONO, MAYAMA—Reference of the evidence of YOSHIDA and KONDO 387—396
Remarks of the Surveyor of International Affairs regarding the entire international society—Dr. Royse on ‘Aerial Bombardment’ 397—398
Evidence presented by Mr. English in respect of military preparations—cannot lead to an inference of preparation for aggressive war as alleged 398—408
SUBJECTS
THE PREPARATION OF JAPAN FOR AGGRESSIVE WAR INTERNALLY AND BY ALLIANCE WITH THE AXIS POWERS — 411
Collaboration between Japan, Germany and Italy—Mr.
Tavernier’s opening statement—Mr. Tavenner’s observations regarding the Anti-Comintern Pact and secret treaties—Tri-Partite pact—The plan of August 7, 1936—The Anti-Comintern Pact—“Secret attached Agreement to the Agreement against the Communist International” ... 4-21
Summation of evidence by the Defense—Account of factors responsible for the change of attitude which afterwards took place in Japan as stated in the Survey of International Affairs 1936—Secret agreement only a defensive alliance 421 424
TRI-PARTITE ALLIANCE OF JAPAN, GERMANY and ITALY—Important roles of OSHIMA and SHIRATORI in connection with these pacts as put forth by the Prosecution-—Cross- examination by the Prosecution 424 428
OVER-ALL CONSPIRACY : AGGRESSION AGAINST THE SOVIET
UNION — — — — 431
The Prosecution case of conspiracy—Presentation of the case by Minister Golunsky
Evidence covering the entire history of Russo-Japanese relations
Relation between Japan and her neighbours—Mission to negotiate treaty with China—Treaty between Japan and China signed—Expedition to Formosa—Dispute relating to Korea—American treaty of friendship and commerce with Korea—first attack upon the Japanese in Korea—Rebellion of the Tong Hak Sect—War between China and Japan—The treaty of Shimonoseki—Partition of China—Boxer Incident—Russian diplomacy
Exploitation of Manchuria—Manchuria “danger spot of the world”—Japan and the United States— Japan’s attitude towards the U. S. S. R.
Russo-Japanese war of 1904-05—Japanese intervention of 1918 in the Soviet Far East referred to in the opening statement of Minister Golunsky—Survey of the Affairs of 1920-23—The Soviet-Japanese Treaty of 21 January 1925
General Vasilyev’s summation of the case and Minister Golunsky’s opening statement discussed—Proposal
SUBJECTS
Chinese-Japanese relations—The First Japanese Proposal and the corresponding section of the American Proposal—The question of stationing Japanese troops in China—Tokyo’s feeling of lack of sincerity in the American attitude
Fall of the K.ONOYE Cabinet on 16 October 1941— Formation of the TOJO Cabinet—New Japanese Proposal known as Proposal A presented to Secretary Hull—TOJO’s telegram to Ambassador NOMURA—Original telegram and its intercept as decoded—Telegram a crucial factor in moulding State Department’s attitude in the negotiations
Japan’s movement into Southern French Indo-China— Negotiation over the Indo-China question—Prosecution contention—Proposal A with regard to the question of Economic activities—Proposal B—Evidence of Mr. Ballantine—Reply from the Secretary of State to the Japanese Representatives Hull note and American proposal compared—defendants consideration of the note as an ultimatum— Measures, just short of war against Japan—Accused SHIMADA’s account of these happenings and their effect on the Japanese mind Prosecution reliance on Pact of Paris—Nine-Power Treaty—Pact of Paris and Mr. Cheney Hyde—Attack on Pearl Harbour without any conspiracy
CONCLUSION — — 557—574
Cumulative effect of the entire evidence concerning
over-all conspiracy — — — — 557—558
Foreign policy of no nation in the world indicates a conspiracy—Responsible Statesmen are not always actuated by mere sinister design 558
Prosecution case carefully examined 559—560
Whether the case is likened to the case of Hitlerite Germany—Reading of the evidence relating to the charge of conspiracy—Conspiracy by itself not a crime in international life 560 562
Lord Wright on “ War Crimes under International Law”—Jurisdiction of the Tribunal—Analysis of the charges—Nuremberg Charter, Article 6—Prosecution reliance on “The Statute of the Permanent Court of International Justice, 1936”—United Nations Charter—Concept of an international
offense—Prosecution analysis of conspiracy as stat-
SUBJECTS
ed in the Anglo-American doctrine—whether the proposition is acceptable 562 571
Essential element in the principle of the law of conspiracy—
Professor Sayre and the Anglo-American system of criminal conspiracy — 571 574
PART V
SCOPE OF TRIBUNAL’S JURISDICTION
Defense objection to the jurisdiction of the Tribunal— how far sustainable—the terms of the Potsdam Declaration and Instrument of Surrender must be limited—A victor’s power under International Law does not entitle him to sit on trial over the vanquished for all his life’s doings 577 579
The term “war” and “hostility” analysed with reference
to the present trial 579—582
PART VI
WAR CRIMES Stricto Sensu—CHARGES OF MURDER AND CONSPIRACY (COUNTS 37 TO 53)
Charge of murder based on allegations—Mr. Comyns Carr’s contention—“Murder” and "Acts of War”—
Hall and Oppenheim 585—590
Alleged specific conspiracies—evidences examined—no part of the charges of conspiracy established—certain charges withdrawn later on 590 595
WAR CRIMES Stricto Sensu (Counts 54 and 55) IN RELATION TO THE CIVIL POPULATION OF THE TERRITORIES OCCUPIED BY JAPAN
Defendants charged with positive acts of atrocities— frequent and habitual commission of the breaches of the laws and customs of war—specific charges 599 604
Influence of War time propaganda—Past experience of War time propaganda 604 606
Nanking "rape”.—Stories of Nanking atrocities—how far the accused can be criminally responsible for such acts 606 609
Instances of atrocities in different theatres of war and against civilians in the power of Japan—Liability of the accused in this connection fully discussed — 610 635
WAR CRIMES Stricto Sensu: IN RELATION TO PRISONERS OF WAR SUBJECTS
Charges in the Indictment in relation to the prisoners of war—Alleged crimes in breach of the laws and customs of war including those contained in the conventions, assurances and practices—Prosecution claim—-Mr. Carr for the Prosecution—Geneva Convention of 1929 and the prosecution position—International Convention for the Amelioration of the Condition of the Wounded and Sick—Prosecution characterization of sinister significance to the factum of non-ratification of the Geneva Convention and evidences adduced in its support
TOJO and the Geneva Convention
Non-ratification of the Convention by Japan—Japanese no-surrender policy
Geneva Convention—Geneva Convention with regard to P. O.W.—Hague Convention—applicability of the provisions of these conventions to this case examined
Japanese policy of surrender analysed—Treatment of prisoners of war—Deposition of TANAKA Ryuki- chi—Different items of crime alleged to have been committed—Criminal responsibility for the charges under consideration—Knowledge of Commission of war crimes—Past history of propaganda recalled— Matters sufficiently counter the hypothesis of any Central policy, direction, or permission countenancing the atrocities now disclosed in evidence
Contravention of Article 2 of the Geneva POW Convention, 1907, examined
Prosecution contention of violation of the Provisions of Article 6 of the Hague Convention, 1907, and Article 31 of the Geneva Convention, 1929, examined— mere acts of State
Employment of prisoners of war in the work having direct relation with war operations : TOJO’s responsibility—Violations of the rules regarding labour of prisoners of war: a mere act of State: not criminal per se : TOJO not liable
Evidence of Colonel Dalrymple Wild and Lt. Colonel BANNO—Report by the Japanese War Ministry after Surrender—Acts not mala in se
Charge of Espionage examined—Accused not criminally responsible
The treatment meted out to the Alied Airmen: one of the gravest charges against Japan—Execution of
SUBJECTS
Captured airmen without trial—Articles of war of OO Army (Draft) 675 678
Commission of proposing a code of air warfare rules 679—681 “Research Report about the Japanese Violations of the Laws of War”—Statements of persons of unknown reliability—Difficulty in accepting the account in its entirety—Accused not criminally responsible for failing to prevent unfortunate executions 682~693
PART VII
RECOMMENDATION
Each and every one of the accused found not guilty— Case of Napoleon recalled—The present case cannot be likened in any way to the case of Napoleon or Hitler—Vindictive retaliation should not be invoked in the name of justice
AND OTHERS
Versus
ARAKI SADAO AND OTHERS
JUDGMENT
OF
HONORABLE MR. JUSTICE PAL
Member from India