DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL
PART 10
As is pointed out by Oppenheim, armed forces are organs of the state which maintains them. They are organs of their home state, even when on foreign territory, provided only that they are there in the service of their
state} and not for their own purposes. Whenever armed forces are on foreign territory in the service of their home state, they are considered extra-territorial and remain under its jurisdiction.
I have already given my reason for saying that the wars of the categories referred to in these counts do not constitute any crime and are not illegal in international law. In this view, acts alleged in counts thirty-seven to forty- three, fifty-one and fifty-two would be only acts of war and would not be murder, etc. as alleged in these counts.
The prosecution laid these charges on the assumption that such wars were illegal. In my opinion, even this assumption would not render these acts murder, pillage, etc. as asserted in these counts. An act of force committed under the authority of a state animo belligerendi will bring in the state of war and will have all the jural incidents of belligerency.
Hall says: "On the threshold of the special laws of war lies the question whether, when a cause of war has arisen, and when the duty of endeavouring to preserve peace by all reasonable means has been satisfied, the right to commence hostilities immediately accrues, or whether it is necessary to give some preliminary notice or intention. A priori it might hardly be expected that any doubt could be felt in the matter. An act of hostility, unless it be done in the urgency of self-preservation or by way of reprisal, is in itself a full declaration of intention; any sort of previous declaration therefore is an empty formality unless an enemy must be given time and opportunity to put himself in a state of defense, and it is needless to say that no one asserts such quizotism to be obligatory.”
According to him, "The date of the commencement of a war can be perfectly defined by the first act of hostility.” After reviewing the opinions of various jurists in the present century and recent practice, Hall concludes thus: "Looking at the foregoing facts as a whole it is evident that it is not necessary to adopt the artificial doctrine that notice must be given to an enemy before entering upon war. The doctrine was never so consistently acted upon as to render obedience to it at any time obligatory. . . . The moment at which war begins is fixed, as between belligerents, by direct notice given by one to the other, when such notice is given before any acts of hostility are done, and when notice is not given, by the commission of the first act of hostility on the part of the belligerent who takes the initiative. ”
In the Sixth Edition (1944) of Oppenheim’s International Law edited by Dr. Lauterpacht the law on the subject is stated thus:
"WHATEVER MAY BE THE CAUSE OF WAR that has broken out, and WHETHER OR NOT THE CAUSE BE A SO-CALLED JUST CAUSE, the same rules of international law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral states. This is so, even if the declaration of war is ipso facto a violation of International Law, as when a belligerent declares war upon a neutral state for refusing passage of its troops, or when a state goes to war in patent violation of its obligations under the Covenant of the League or of the General Treaty for the Renunciation of War. To say that, because such a declaration of war is ipso facto a violation of International Law, it is ‘ inoperative in law
and without any judicial significance’ is erroneous. The rules of International Law apply to war from whatever cause it originates.”
It may be noticed here that this is the view of the learned author as to belligerency and its jural incidents, though, according to him, the justice or otherwise of the causes of war has been of much legal relevance after the Pact of Paris. The learned author says: “So long as war was a recognized instrument of national policy both for giving effect to existing rights and for changing the law, the justice or otherwise of the causes of war was not a legal relevance. The right of war, for whatever purposes, was a prerogative of national sovereignty. Thus conceived, every war was just. The legal position has now changed with the limitation of the right of war in the Covenant of the League and with its abolition as an instrument of national policy in the General Treaty for the Renunciation of War.”
According to the learned author, “War cannot now legally, as it could be prior to the conclusion of the Pact, be resorted to either as a legal remedy or as an instrument for changing the law. Resort to war is no longer a discretionary prerogative right of States, Signatories of the Pact; it is a matter of legitimate concern for other signatories whose legal rights are violated by recourse to war in breach of the Pact; it is an act for which a justification must be sought in one of the exceptions permitted by the Pact of Paris.” I have already considered this aspect of the case and have given my reason why I cannot accept this view.
What is pertinent for my present purpose is to point out that in spite of this view of the Pact, the learned author does not deny jural incidents of belligerency even to an unjust and unjustifiable war. Indeed war is a condition producing certain effects as between the contending states and the condition is there no matter whether it is brought justly or unjustly. In the language of Oppenheim himself war is a fact recognized by International Law. It is a particular relation between States. It comes into being as a fact irrespective of its legitimacy or otherwise, and the very fact of its existence takes all killing in due course of its conduct out of the category of murder of the peacetime legal system. If any illegality is attached to the origination of the fact, that is to be dealt with otherwise. That does not change the character of the fact or relation itself or its jural incidents.
Hall says: “When differences between States reach a point at which both parties resort to force, or one of them does an act of violence which the other chooses to look upon as a breach of the peace, THE RELATION OF WAR is set up, in which the combatants may use regulated violence against each other until one of the two has been brought to accept such terms as his enemy is willing to grant. ”
In conferring THE STATUS OF BELLIGERENTS the Hague Regulations contemplate no distinction between the just and the unjust cause of war.
The position is neither affected by the Hague Convention relative to the opening of hostilities. The crucial point, the period of time which must elapse between the presentation of the declaration of the ultimatum and the beginning of hostilities, is left undetermined by that Convention.
It will be pertinent to notice here the views of Oppenheim on this point.
Though such initiation of hostility is looked upon by the author as a delinquency, he still holds that it will all the same be ‘war’ with all the incidents of belligerency.
Oppenheim says: “There is no doubt that, in consequence of Convention III, recourse to hostilities without a previous declaration of war, or a qualified ultimatum, is forbidden. But the war can nevertheless break out without these preliminaries. A state might deliberately order hostilities to be commenced without a previous declaration of war, or a qualified ultimatum. . . It is certain that States which deliberately order the commencement of hostilities without a previous declaration of war or a qualified ultimatum commit an international delinquency; but they are nevertheless engaged in war... In all the similar cases, all the laws of warfare must find application, for a war is still a war in the eyes of International Law, even though it has been illegally commenced .”
It should be noticed here that though the learned author observed that the commencement of hostilities without a previous declaration of war is a delinquency, the war itself is not illegal. In an earlier passage he says: “The failure to observe it (The Hague Convention III of 1907) does not render the war illegal; neither does it take away from the hostilities thus commenced the character of war. ” In my opinion this correctly states the position of International Law. Otherwise the entire invading army would be guilty of murder and the victors in such a war will return to their primitive rights of total destruction of the vanquished, though now in the name of justice and of a developed sense of humanity.
As I have already noticed, the prosecution case in this respect really goes further than mere want of declaration of war, and is founded on a charge of treachery.
1 had occasion to examine the evidence in this respect while discussing the final stage in the alleged over-all conspiracy. There I pointed out why I could not accept the prosecution charge of treacherous conduct of the Japanese statesmen concerned. No doubt preparation for war was going on while the diplomatic negotiations were being held. But such preparations were being made by both sides. If the Japanese side “had little confidence that the KURUSU-NOMURA negotiations would achieve their purposes”, I do not feel that the American side entertained any greater confidence in the diplomatic achievement. The steps taken by the American side during the progress of the negotiation did not indicate much confidence on their part in the final achievement of the negotiation. Since at least July 1941 America was taking steps with the full knowledge of their probable effects on Japan. Japan was preparing for surprise attack in case the negotiation would ultimately fail and Japan did set a time limit to the continuance of the negotiation. But I cannot say that this was in any way inconsistent with her sincerity in the negotiation.
The evidence now fully establishes that America had prior knowledge of the fact that Japan was going to strike. America was certainly not entitled to be informed where she would be struck first. Even if there were any treacherous design on the part of Japan, the design thus failed, it being disclosed to
America beforehand. The resulting act of war therefore at the time when it was committed was not deprived of its character of belligerent act.
In my judgment the charges laid in counts thirty-seven to forty-three, forty-five to fifty as limited above and fifty-one and fifty-two should fail and the accused should be ACQUITTED OF SUCH CHARGES.
Charges under counts forty-five to fifty, in so far as they relate to “ordering, causing and permitting the armed forces of Japan ... TO SLAUGHTER the inhabitants contrary to international law, ” are covered by the more comprehensive count fifty-four.
Like these counts, count fifty-four also, at least in one part, charges the accused named therein as having ORDERED, AUTHORIZED and PERMITTED certain specified persons TO COMMIT the specified offenses.
There is absolutely no evidence on the record to show that there was any order, authorization or permission “to slaughter the inhabitants contrary to international law” as alleged in counts 45 to 50, beyond, of course, the order to attack these territories. I have already considered the case of killing animo belligerendi. Apart from slaughter or killing involved in initiating or waging war, there was no other order, authorization or permission for the alleged purpose.
In my judgment therefore these charges should fail in toto and the accused should be acquitted of all the charges contained in these counts.
I would next take up counts 44 and 53 wherein the charges laid are based on certain specific conspiracies, distinct from the alleged original comprehensive conspiracy charged in counts 1 to 5. In order to sustain these charges the specific conspiracies alleged in them must be proved.
In count forty-four the object of the plan or conspiracy is given to be TO PROCURE AND PERMIT the murder on a wholesale scale of:
1. prisoners of war,
2. members of the armed forces etc. who might lay down their arms,
3. civilians,
4. crews of ships destroyed by Japanese forces.
The essential elements in the charge contained in count fifty-three are:
1. That there was a common plan or conspiracy.
2.
(a) The object of such plan or conspiracy was to order, authorize and permit
(i) the commander-in-chief,
{ii) the officials of the Japanese War Ministry,
(iii) the persons in charge of several camps and labour units and their subordinates to commit the breaches of laws and customs of war.
(b) That the Government of Japan should abstain from taking adequate steps in order to secure observance of the conventions, assurances and laws and customs of war and to prevent breaches thereof.
Very voluminous evidence has been led before us to establish the atrocities actually perpetrated at various places at various times. But not an iota of
evidence having any direct bearing on the establishment of the ALLEGED PLAN OR CONSPIRACY could be adduced in this case. The prosecution ultimately invited us to infer such a conspiracy from the fact that everywhere SIMILAR ATROCITIES were committed by the Japanese forces. According to them, “this similarity of treatment throughout the territories occupied by the Japanese forces will lead to the conclusion that such mistreatment was the result not of the independent acts of the individual Japanese Commanders and soldiers, but of the general policy of the Japanese forces and of the Japanese Government.”
The similarity in the alleged atrocities may cut just the other way as well. It may as well indicate some common source shaping the allegations and evidence. The world is not quite unaware of some baseless atrocitystories designed to arouse animosities. Professor Arnold Anderson of the Iowa State College in his recent article on “The Utility of the Proposed Trial and Punishment of Enemy Leaders” points out how in connection with the American Civil War 'prison atrocity stories’, later disproved almost totally, were the major elements in a propaganda designed to arouse the animosities.
He refers to W. B. Hesseltine’s “Civil War Prisons; —A Study in War Psychology”, where these stories are dealt with in considerable detail. It will be interesting to notice here that the prison atrocity stories there given bear a striking similarity to the stories of atrocities now before us. There, the world was told of the southerners' slashing the throats of some prisoners of war from ear to ear, cutting off the heads of others and kicking them about as foot-balls; setting up the wounded against trees and firing at them as targets or torturing them with plunges of bayonets into their bodies.’
An illustrated Weekly carried a full page picture of rebels plunging their bayonets into the bodies of the wounded soldiers. It was also told how prisoners were confined in closed rooms whose poisoned atmosphere was slowly sapping their strength hour by hour’. There were stories of bad food, cruel treatment and utter destitution. An escaped quarter master of an Iowa regiment reported to the Governor of his state an account of his experiences: he said that the two hundred and fifty officers who shared his confinement received less than one fourth the rations of a private in the United States Army and were “subjected to all the hardships and indignities which venomous traitors could heap upon them.” “The prisoners were confined in a foul and vermin abounding cotton shed.” “They were forbidden to leave the crowded room to go to the sinks at a time when diarrhoea was prevalent; ” "the prisoners were destitute of clothing;’ “the hospitals were denied medicines”.
“Corn bread issued to prisoners was made of unsilted meal and the meat was spoiled”. Men were killed for looking out the window— prohibiting them the poor privilege of looking at their mother earth.” A surgeon told that, “ in the wounds of many of the men there were enough maggots to fill a wine glass”.
There were OFFICIAL REPORTS also prepared on an examination of the condition of the returned men. Pictures of these returned prisoners also were taken to accompany the report and the report contained all of the stories of atrocities told of the treatment of prisoners up to that time. One report recounted “the absence of shelter, the huddled men who were fed like swine on corn-bread made from unbolted meal, soup with worms and bugs and mule meat.”
“Rats were eaten by the starving men—-once a dog was eaten—and men were grateful for the scraps thrown to them from the surplus supplies of their guards. The sick were not sent to the hospitals until past recovery, were mistreated by surgeons, and died.”
The bleak tobacco warehouses of Richmond were described in lurid detail, the lack of furniture, the unheated rooms with broken windows, and the crowds confined within each room were dwelt upon. “Prisoners were shot at windows, the men were without food, and many became insane. . . . Men were brutally punished for trivial offenses; the naked bodies of the dead were placed in heaps awaiting burial and were eaten by hogs, dogs, and rats ”
In short the entire program of mistreatment was such as to be charged to ‘a predetermined plan, originating somewhere in a rebel counsel, for destroying and disabling the soldiers of their enemy, who had honourably surrendered in the field'.
Before the end of that war, however, the confederacy took an opportunity to strike a blow for its own defense in the field of propaganda. A senate resolution in the Confederate congress appointed A JOINT COMMITTEE to investigate the treatment of prisoners by the two sides. Early in March this committee presented a preliminary report which began with an examination of the charges made in the earlier reports and publications. The spirit and intent of these publications, it was asserted, was to inflame the evil passions of the North . The photographs were cited as evidence of this spirit; such cases, the committee believed, could have been found in every Northern hospital and even in homes.
I need not multiply these stories. The truth or falsehood of those stories would not help us in the least in our present case. We have evidence before us, and shall have to come to our own decision on the evidence that has been led here. All that I want to emphasize is that a certain amount of caution is needed in the sifting of the evidence on this point.
Even narratives of personal experiences revealing a uniformity of testimony do not, by the very mass of such testimony, necessarily guarantee the truthfulness of the charges. If there is similarity in the prisoners meeting with cruel guards and murderous keepers everywhere, and in the detailed atrocities narrated, we must not fail to notice that there is uniformity in the stories of escapes also — almost always one escaping from each massacre by strikingly similar chances. Intriguing psychological problems may be involved in this.
We know, we cannot always believe men who saw ‘something happen’ even when they say they saw with their own two eyes. Suggest something to them, set their thought processes working on clearly defined lines, alarm them just a little, intrigue them somewhat, and anything may happen.
The evidence before us on this phase cannot all be said to be above all suspicion of this character.
I need mention here only Exhibits 1,765 A, B, C and D, being the films styled “Nippon Presents”. According to prosecution, “early in the Pacific war the Japanese who had overrun Java made a film for screening in a conquered
Australia to show how well they treated their prisoners”.
The prosecution case is that the English, Australian and Dutch Prisoners of War and internees were forced to play parts in it. Java fell in March 1942. These films, according to prosecution, were made during the period from June to mid-September 1943 under the direction of Captain IANAGAWA of the Japanese force. The prosecution evidence is that these prisoners and internees were never given sufficient food from the very beginning and that consequently they all suffered from mal-nutrition. This evidence about insufficient food is without any reservation.
We can understand that the persons who were made to take part in the film -- adult male and female and small children —were all forced by the Japanese to assume a cheerful appearance when the pictures were being taken. It is however difficult to see how after starvation for a period exceeding one year they could be forced to appear well-fed. The picture apparently shows the prisoners and internees all well-fed and cheerful. One would find thus some difficulty in accepting the prosecution version of the Japanese treatment of these prisoners to the full extent.
As was pointed out by Dr. Hesseltine, “an inevitable concomitant of armed warfare is the hatred engendered in the minds of the contestants by the conflict. The spirit of patriotism which inspires men to answer the call of their country in its hour of need breeds within those men the fiercest antagonism toward that country’s enemies. Such enmity finds its natural expression not only on the battlefield in the heat of conflict but also in the lives of the soldiers and the sentiment of the community from which they come, both of which have been thrown out of their accustomed peacetime routine by the outbreak of the war. The attachment to an ideal, a cause, or a country, when such attachment calls for the sacrifice of security and life, blinds the person feeling that attachment to whatever of virtue there may be in the opposing ideal, cause, or country. Seemingly, it becomes necessary for the supporters of one cause to identify their entire personality with that cause, to identify their opponents with the opposing cause, and to hate the supporters of the enemy cause with a venom which counter-balances their devotion to their own.
“To a people actuated by such a devotion to a cause, it is inevitable that their opponents appear to be defective in all principles which are held dear by that people. The enemy becomes a thing to be hated; he does not share the common virtues, and his peculiarities of speech, race, or culture become significant as points of difference or, better sins of the greater magnitude. The critical faculties, present to some degree in times of peace, atrophy on the approach of national catastrophe.
“With such a state of mind coming as the natural result of the upheaval of the social order which the war produced, it was not difficult for credence to be gained for stories of atrocities committed by one or the other side in the War.”
Sometimes the defeat of the army produces a depression which is to be fed by the stories of barbarities of the enemy.
All the factors that can provoke a propaganda of this character were present in the case before us. Besides there was AN ADDITIONAL UNFORTUNATE FACTOR which also cannot be neglected. The prisoners of war in the hands of the Japanese were extraordinarily overwhelming in number and indicated a result of the fight which, as every white nation felt, completely undermined the myth of white supremacy. A certain amount of propaganda against the nonwhite enemy might have been thought of to repair the loss. At any rate it is not possible for us to ignore these factors while dealing with the evidence on this phase. We can well imagine how in a matter like this the defense is necessarily helpless. Nothing could be gained here by cross-examinations.
I
have carefully followed the evidence adduced in the case but I must confess I have not been able to induce myself to infer any common plan or conspiracy in this respect. No doubt the atrocities were similar. But I do not find any basis for inference therefrom that these were the result of common plan or conspiracy of the persons charged with such plan. Nothing could be placed before us which would go to show that the concurrence of the persons named in the counts was in any way essential for the perpetration of these atrocities. In my judgment the similarity referred to by Mr. Mansfield does not necessarily indicate any policy of the Japanese Government in this respect. The similarity in many cases lies in the details of tortures. I cannot believe that such details would be settled by any government.
One of the items of maltreatment relates to the quantity of food and medical help given to the prisoners. But even the prosecution evidence goes to show that there was not always insufficiency in the supplies in this respect from the government, In any event even assuming all that has been said by Mr. Mansfield on the basis of similarity, we shall not arrive at the conspiracy alleged. Coming to this group in the indictment Mr. Comyns Carr indicated the ways in which the prosecution claims to have proved the responsibility of the accused for the outrages referred to in these counts. None of the items in his summation would in any way go towards establishing the specific allegation of conspiracy made in these counts.
In my judgment no part of the charges of conspiracy contained in counts forty-four and fifty-three has been established in this case.
The prosecution might have seen this difficulty. In any case they gave up these charges in their summation of the case, though for a different reason. They said: “Having regard to the decision of Nuremberg as to the meaning of the last sentence in their Article 6, corresponding to our Article 5 of the Charter, which we accept, we do not ask for conviction on count 44 or 53 of the indictment; nor on counts 37 and 38 so far as they depend upon clauses (b) and (c) of the Charter. ”
WAR CRIMES STRICTO SENSU
COUNTS 54 AND 55
IN RELATION TO THE CIVIL POPULATION OF THE TERRITORIES
OCCUPIED BY JAPAN
There remain only counts 54 and 55 of the indictment for my consideration.
Count 54 charges that the accused named therein . . . ordered, authorized and permitted the commanders-in-chief and other persons mentioned in Count 53 to commit the offenses therein mentioned. . .
Count 55 charges that the accused named therein . . . being by virtue of their respective offices responsible for securing the observance of the . . . conventions, assurances and the laws and customs of war in respect of armed forces . . . and in respect of . . . prisoners of war and civilians then in the power of Japan . . . deliberately and recklessly DISREGARDED THEIR LEGAL DUTY to take adequate steps to secure the observance and prevent breaches thereof, and thereby violated the laws of war.
It may be noticed in this connection that in the indictment at the Nuremberg Trial there were no charges corresponding to those contained in Count 55 of the indictment before us. The accused at the Nuremberg Trial were all charged with having committed some positive acts of atrocity. Count 3 of that indictment contained charges relating to war crimes. In the statement of the offense it was charged that all the defendants acting in concert with others, formulated and executed a common plan or conspiracy to commit war crimes. . . This plan, it was charged, involved the commission of crimes perpetrated . The said war crimes were alleged to have been committed by the defendants and by other persons for whose acts the defendants were responsible, as such other persons, when committing the said war crimes, performed their act in execution of a common plan or conspiracy to commit the said war crimes. . . The charges in this respect related to:
A. Murder and ill-treatment of civilian population of or in occupied territory and on the high seas;
B. Deportation, for slave labour and for other purposes, of the civilian population of and in occupied territories;
C. Murder and ill-treatment of prisoners of war, etc. ;
D. Killing of hostages;
E. Plunder of public and private properties;
F. The exaction of collective penalties;
G. Wanton destruction of cities, towns, etc. ;
H. Conscription of civilian labour;
I. Forcing civilians of occupied territory to swear allegiance to a hostile power;
J. Germanization of occupied territories.
In each case the defendants were charged with positive acts of atrocities.
The Tribunal at Nuremberg, therefore, had no occasion to consider any charge like the one contained in Count 55 of the Indictment before us. Those of the defendants, who were found guilty of war crimes, were found guilty of having themselves participated in the atrocious doings, as is charged in Count 54 of the Indictment before us.
There is, indeed, some difficulty in reconciling Count 55 with the provisions of the Charter. The Charter lists as crime only “violations of the laws or
customs of war”. It does not list as crime “disregard” of “legal duty to take adequate steps to secure the observance of and to prevent the breaches of’ the laws of war. If Count 55 be taken to mean that “the deliberate and reckless disregard of legal duty” itself constitutes a crime, then the crime charged therein would be outside the provisions of the Charter and as such, outside our jurisdiction.
The Count, however, may be taken as mentioning “deliberate and reckless disregard of duty” only as evidentiary conduct whereupon the resulting violation of the laws of war should be ascribable to the persons charged. The crime charged is the violation of the laws of war and the act must ultimately be brought home to the accused named. Any disregard of duty on his part, if established, would only supply some evidentiary fact for this purpose. The expression “and thereby violated the laws of war” in such a case would mean not that “the deliberate and reckless disregard of duty” itself amounts to violation of the laws of war, but that the prosecution undertakes to establish the act of violation of the laws of war to be the act of the accused named and it proposes to do so by establishing a particular conduct of the accused. The question whether the particular conduct, if and when established, does or does not establish the factum probandum, would always be for the tribunal to determine. The charge will not be established till the act of violation is established to be the act of the accused.
Count 54 refers to offenses mentioned in Count 53.
Count 53 speaks of the frequent and habitual commission of the breaches of the laws and customs of war as contained in and proved by the conventions, assurances and practices referred to in Appendix D, against
(1) the armed forces of the countries named;
(2) the prisoners of war;
(3) civilians then in the power of Japan.
The conventions, assurances and practices that are referred to in Appendix D are the following:
1. The practice of civilized nations.
2.
(a) The convention No. IV done at the Hague on the 18th October 1907, concerning the laws and customs of war on land;
(b) The regulations set out in the Annex to the said convention;
(c) The convention No. X done at the same time and place concerning Maritime War;
(d) The Geneva Red Gross Convention of 1929, being the International Convention for the Amelioration of the Condition of The Wounded and Sick in Armies in the Field, done at Geneva on the 27th July 1929.
(e) The Geneva Convention of 1929 being the International Convention relative to the Treatment of Prisoners of War, done at Geneva on the 27th July 1929, though not ratified, yet acceded to by Japan within the meaning of its Article 95, as a result of the assurances given as per communications referred to below.
3. (a) The assurances given by Japan to the effect that, although not bound by the Convention relative to the treatment of Prisoners of War, Japan WILL APPLY mutatis mutandis:
(i) The provisions of that convention to American prisoners of War. (Communication dated the 29th January 1942: Exh. 1,490)
(ii) The conditions of that Convention to English, Canadian, Australian and New Zealand Prisoners of War in their power. (Communication dated the 30th January 1942: Exh. 1,496)
Japan, by this communication, further assured that ‘with regard to supply of food and clothing to prisoners of war, they will consider on condition of reciprocity national and racial customs of the prisoners ’.
(b) The assurance given by Japan in a communication dated the 13th February 1942, in the following terms:
“The Imperial Government will apply during the present war, on condition of reciprocity, the provisions relative to the treatment of prisoners of war of the 29th July 1929, TO ENEMY CIVILIAN INTERNEES, as far as applicable to them, and provided that labour will not be imposed upon them contrary to their free choice. (Exh. 1,491)
(c) The said communications constituted an assurance to all the nations at war with Japan other than the Republic of China.
THE ALLEGED ACTS in breach of the laws and customs of war are given in fifteen sections in Appendix D of the Indictment. They may be summarized as follows:
1. Inhumane treatment, contrary to Article 4 of the Annex to the Hague Convention IV of 1907 and the whole of the Geneva Convention of 1929 and the said assurances. Prisoners of war and civilian internees were murdered, beaten, tortured and otherwise ill-treated, and female prisoners were raped by members of the Japanese forces.
2. Illegal employment of prisoner of war labour;
(a) prisoners of war were employed on work having connection with the operations of war;
(b) prisoners of war were employed on work for which they were physically unsuited, and on work which was unhealthy and dangerous ;
(c) the duration of daily work was excessive, and prisoners were not allowed rests of twenty-four consecutive hours in each week;
(d) conditions of work were rendered more arduous by disciplinary measures;
(e) prisoners were kept and compelled to work in unhealthy climates and dangerous zones, and without sufficient food, clothing and boots.
3. Refusal and failure to maintain prisoners of war:
(a) In supplying food and clothing differences in national and racial customs were not adverted to. Adequate food and clothing were not supplied.
(b) The structural and sanitary condition of the camps and labour detachments failed entirely to comply with the Regulation and was extremely bad, unhealthy and inadequate.
(c) Washing and drinking facilities were inadequate and bad.
4. Excessive and illegal punishment of prisoners of war:
(a) Prisoners of war were killed, beaten and tortured without trial or investigation of any kind, for alleged offenses ;
(b) Such unauthorized punishments were inflicted for alleged offenses which, even if proved, were not under the said Conventions’ offenses at all;
(c) Collective punishments were imposed for individual alleged offenses ;
(d) Prisoners were sentenced to punishment more severe than imprisonment for thirty days for attempting to escape;
(e) Conditions of the trial of prisoners did not conform to those laid down in the said Chapter;
f) Conditions of imprisonment of prisoners sentenced did not conform to those laid down in the Geneva convention.
5. Mistreatment of the sick and wounded, medical personnel and female nurses:
(а) Officers and soldiers who were wounded or sick, medical
personnel, chaplains, and personnel of voluntary aid Societies were not respected or protected, but were murdered, illtreated and neglected;
(b) Medical personnel, chaplains and personnel of voluntary aid
Societies were wrongfully retained in Japanese hands ;
(c) Female nurses were raped, murdered and ill-treated;
(d) Camps did not possess infirmaries, and seriously sick prisoners and those requiring important surgical treatment were not admitted to military or civil institutions qualified to treat them;
(e) Monthly medical inspections were not arranged ;
(f/) Sick and wounded prisoners were transferred although their recovery was prejudiced by their journeys.
6. Humiliation of prisoners of war, and especially officers :
(a) Prisoners were deliberately kept and made to work in territories occupied by Japan, for the purpose of exposing them
to the insults and curiosity of the inhabitants;
(b) Prisoners in Japan and in occupied territories, including officers, were compelled to work on menial tasks and exposed to public view;
(c) Officer prisoners were placed under the control of non-commissioned officers and private soldiers and compelled to salute them, and to work.
7. Refusal or failure to collect and transmit information regarding prisoners of war, and replies to enquiries on the subject. Proper records were not kept, nor information supplied as required by the said Articles, and the most important of such records as were kept were deliberately destroyed.
8. Obstructions of the rights of the Protecting Powers, of Red Gross Societies, of prisoners of war and of their representatives:
(a) The representatives of the Protecting Power (Switzerland) were refused or not granted permission to visit camps and access to premises occupied by prisoners;
(b) When such permission was granted they were not allowed to hold conversation with prisoners without witness or at all; (c) On such occasions conditions in camps were deceptively prepared to appear better than normal, and prisoners were threatened with punishment if they complained j (d) Prisoners and their representatives were not allowed to make complaints as to the nature of their work or otherwise, or to correspond freely with the military authorities or the Protecting Power;
(e) Red Cross parcels and mail were withheld.
9. Employing poison gas.
This allegation is confined to the Republic of China.
10. Killing enemies who, having laid down their arms or no longer having means of defense, had surrendered.
11. Destruction of Enemy Property, without military justification or necessity, and pillage.
12. Failure to respect family honour and rights, individual life, private property and religious convictions and worship in occupied territories, and deportation and enslavement of the inhabitants thereof; Large numbers of the inhabitants of such territories were murdered, tortured, raped and otherwise ill-treated, arrested and interned without justification, sent to forced labour, and their property destroyed or confiscated.
13. Killing survivors of ships sunk by naval action and crews of captured ships.
14. Failure to respect military hospital ships and unlawful use of Japanese hospital ships.
15. Attacks, and especially attacks without due warning, upon neutral
Item 9 (Employing poison gas) may at once be disposed of as abandoned by the prosecution. No evidence to substantiate this charge was adduced at the hearing.
Item 15 (Attacks without due warning upon neutral ships) also was a- bandoned by the prosecution. On 8 December 1947, Captain Robinson for the prosecution stated in Court that it has been brought out that in this indictment “there is no charge of conducting submarine warfare as a matter of sinking merchant ships without warning” (R. P. 34, 772).
On the basis of
this statement by the Prosecution, Mr. Brannon for the Defense withdrew on 9 December 1947, Defense Document No. 2, 484 purporting to contain the statement of Admiral Nimitz of the U. S. Navy pertaining to American submarine warfare in the Pacific. (R. P. 34, 819).
As regards the rest of the acts alleged, the accused are sought to be made responsible for them on the allegation that they ORDERED, AUTHORIZED and PERMITTED their commission.
The charge against the present accused is that they ordered, authorized and permitted THE FOLLOWING PERSONS to commit the alleged offenses;
1. The commanders-in-chief of the several Japanese naval and military forces in each of the several theatres of war in which Japan was then engaged,
2. The officials of the Japanese War Ministry,
3. The persons in charge of each of the camps and labour units for prisoners of war and civilian internees in territories of or occupied by Japan,
4. The military and civil police of Japan, and
5. Their respective subordinates.
THE QUESTIONS that arise for our consideration here are:
1. Whether the evidence adduced establishes these acts;
2. Whether the evidence adduced establishes the alleged connection of the accused with these acts j
3. Whether these acts or any of them constitute a crime in international law;
4. Whether in international law the accused or any of them is criminally liable for such criminal acts.
Before proceeding to the evidence adduced in this case on this phase, I would once again utter a word of caution. Stories of war crimes generate passion and desire for vengeance. We must avoid all influence of resentment. We must avoid all possible interference of emotional factors and remember that we are here concerned with events which occurred at the time when fighting was going on. There is the special difficulty that the events occurring then were likely to be witnessed only by excited or prejudiced observers.
Further, belligerents, who during war succeed in winning victories and getting prisoners of war, are liable to be credited with cruelties of the character alleged in the present indictment and , if ultimately defeated, their very defeat as it were establishes their most devilish and fiendish character. We are told, if punishment does not strike here, it should strike nowhere. We must
avoid any such feeling.
In appraising the value of any contemporary press report or the like we must not forget the part propaganda is designed to play in wartime. As I have noticed already, a sort of vile competition is carried on in exerting the imagination as a means of infuriating the enemy, heating the blood of the stay-at- homes on one ’ s own side and filling the neutrals with loathing and horror. I have given above some war atrocity stories. I might also mention the story given out during the First World War about the use of dead bodies by the Germans. The story will remain recorded in history as the classic lie of war propaganda. Mr. A. J. Cuming, the then political editor of the News Chronicle”, an influential and widely circulated daily newspaper of England, in his book entitled “The Press” published in 1936, exposed the lie of this piece of propaganda and narrated how it was utilized. He said; “In Parliament, on April 30th, the late Mr. Ronald McNeil asked whether the Prime Minister would take steps to make known ‘ as widely as possible in Egypt, India and the East generally the fact that Germans were boiling down their dead soldiers into food for swine’”.
When Mr. John Dillon intervened to ask whether the Government had any solid ground for believing it, Lord Robert Cecil, Minister of Blockade, replied that he had no information beyond the extracts that had appeared in the Press, but “in view of other actions taken by the German military authorities there is nothing incredible in the present charge against them”.
He added: “His Majesty’s Government has allowed the circulation of the facts as they appeared through the usual channels. ”
******
“The incident has now rearly slipped out of the public memory. The British authorities tried to forget it as soon as it had done its dirty work. But it is still dimly believed in as a fact by many persons who read no denials in the British Press and, like Lord Robert Cecil, saw ‘nothing incredible’ in the charge made in responsible papers whose bona fides they still artlessly trusted. ”
Mr. John Basset Moore, formerly a Judge of the Permanent Court of International Justice writing in 1933 says:“There are, I believe, a few persons who realize the extent to which propaganda has been used in connection with international relations, .... Only this year a leading English periodical has said: During the war the astonishingly efficient British propaganda service convinced the Americans of some of the most bizarre fairy tales that have ever been devised. To this day most of the population has not recovered from the alleged information which it then swallowed whole.
We cannot ignore the fact that the nations of the present-day civilized world do not always show much scruple in adopting a different standard of conduct in their behaviour in connection with what they consider to be their national cause, from what they follow in their private life. They feel no scruples in devising “ bizarre fairy tales and spare no pains in making people “swallow the same whole”.
To add to this, since the First World War there has been such a demand for the trial and conviction of defeated warlords, that a sort of unconscious processes were going on in the mind of everyone who devoted his interest and energies to get these persons punished. These processes in most cases remain unobserved by the conscious part of the personality and are influenced only indirectly and remotely by it. The result might be a partial distortion of reality. There would always be some eagerness to accept as real anything that lies in the direction of the unconscious wishes.
The past history of propaganda would have a very important bearing on the present case, at least when we would come to consider the legal effect of any alleged INACTION on the part of any of the accused. Even if it be now established that during the war with which we are at present concerned, these factors did not at all operate, it will still remain a pertinent consideration whether or not the past experience of war-time propaganda would be likely to influence the inclination of the mind of the accused towards acceptance or rejection of the several war-time stories of atrocities coming, as they were, from the hostile sources.
I might mention in this connection that even the published accounts of Nanking “rape” could not be accepted by the world without some suspicion of exaggeration. Referring to the same incident, even as far back as November 10, 1938, Colonel Steward (in the chair) at Chatham House considered that such things as happened at Nanking were regrettable, but that he “could cast his mind back to 1900, and see that whatever was happening now, it was probable that the Japanese had learned it from other nations”.
Referring to the same incident, Sir Charles Addis on that occasion could
say:
“Between two countries at war there was always a danger that one or other of the combatants would seek to turn public opinion in his favour by resort to a propaganda in which incidents, inseparable alas (!) from all hostilities, were magnified and distorted for the express purpose of inflaming prejudice and passion and obscuring the real issues of the conflict. ”
That purpose like the above might have operated on the present occasion also cannot be ignored altogether. I have already referred to some instances wherein some suspicion of distortion and exaggeration cannot be avoided. If we scrutinize the evidence about Nanking rape carefully, similar suspicion would again be unavoidable.
The two main witnesses of Nanking atrocities are Hsu Chuan-ying and John Gillespie Magee.
Dr. Hsu was a Ph.D. from the University of Illinois. His statement, taken out of court, was sought to be given in evidence in this case. This was prosecution document 1,734. We disallowed this and ruled that he should be examined in court. Accordingly, he was so examined. He was a resident of Nanking and in December 1937 was connected with the Red Swastika Society.
Mr. Magee was a minister of an Episcopal church at Nanking from 1912
to 1940 and was in Nanking throughout the month of December 1937 and January and February 1938.
Both these witnesses have given us horrible accounts of the atrocities committed at Nanking. It is, however, difficult to read this evidence without feeling that there has been distortions and exaggerations. I would only point out a few instances to indicate that it may not be quite safe to accept the entire story given out by these witnesses.
Dr. Hsu gives us the following stories. I give them in his own language. He says:
1. “I see with my very eyes the Japanese soldier raping a woman in a bathroom, and his clothes outside, and then AFTERWARDS we discovered the bathroom door, and found a woman naked and also weeping and downcast. ”
2. “. . . We went to the camp to try to get—to catch two Japanese who were reported to be living there. At the time we reached there we saw one Japanese still sitting there, with a woman on the corner and weeping. I told FUKUDA, ‘ This is the man who did the raping.
3. “Once we caught a Japanese raping, and he was naked. He was sleeping, because then we tied him and we got him to that police office. ”
4. “I know another case where because of the boatman, he happens to be a member of the Swastika Society, he told me this: where he saw that too on his boat, it happened on his boat. There was a family of respectable people tried to cross the river on that boat. Now, in the middle of the water of the river, two Japanese soldiers came. They found—they want to inspect that boat; where, on seeing the young women there, the young women and girls there, two of them, so they began, started raping right in the eyes of their parents and one of their husbands.
“After raping, the Japanese asked the old man in that family:
‘ Isn’t that good? ’ Where his son, the husband of one of the young women, he got so angry so he began to beat the Japanese soldier. The old man cannot stand such a thing so he knows that they were all in trouble so he immediately jumped into the river. Then his wife, old wife, the mother of that young man, she began to weep and came out and also followed her husband. I forgot to say that when the Japanese asked the older man whether it is good or not, he wanted the old man to rape that young girl, so all the girls— now I saw this—they all jumped into the river. So the whole family jumped into the river and all drowned. This is not secondhand story. This is a real, real and genuine, and we have, we know that, the boatman has been with us for a long time. ”
We may next take some instances from Mr. Magee’s evidence:
1. “On December 18th, I went with Mr. Sperling, a German member of our Committee, to the residential section of the city. It
seemed to us that there were Japanese soldiers in every house after women. We went into one house. On the ground floor a woman was weeping, and the Chinese there told us she had been raped. They said there was still another Japanese in the house on the third floor. I went up there and tried to get into the room that was indicated. The door was locked. I pounded on the door and shouted and Sperling soon came and joined me. After about ten minutes a Japanese soldier came out leaving a woman inside. ”
2- "I was called to another house, drove out three Japanese in the woman’s quarters on the second floor; and then the Chinese there pointed to a room. I rushed into the room, bursting open the door and found a soldier—a Japanese soldier—in the act of rape. I drove him out of the room . . . . ”
3. “One woman that I have known for almost thirty years, one of our Christians, told me she was in a room with one girl and then when the Japanese soldier came in, she knelt before him, begging him to leave the girl alone. He hit her over the head with the flat side of a bayonet and raped the girl.”
It seems these witnesses accepted every story told to them and viewed every case as a case of rape. Is it really so easy to accept the story given by the boatman?
There were only two Japanese soldiers. On the other side, there were the girls raped, their father, as also the husband of one of the girls. Of course, there was also the boatman himself. The entire family valued their honour more than their life. The whole family subsequently did jump into the river and all killed themselves drowning.
How with such a family could it be possible for the two soldiers to rape the girls “right in the eyes of their parents and one of their husbands”? Dr. Hsu did not see anything improbable in this story. He could give this story to us as a “real and genuine”, because the boatman had been with the Red Swastika Society for a long time.
The other stories may certainly be accepted as instances of misbehaviour on the part of the Japanese soldiers with the Chinese women. But the witnesses unhesitatingly assert them as cases of rape. Even when they found one soldier and one Chinese girl inside a room and the soldier was sleeping, the witness could tell us that he went to sleep after raping; and, while giving this story, the witness almost felt that there could be no doubt about what he was saying.
I am not sure if we are not here getting accounts of events witnessed only by excited or prejudiced observers.
If we proceed to weigh the evidence carefully we shall find that in many cases the opportunity for observing the happening must have been of the most fleeting kind; yet the positiveness of the witnesses is sometimes in the inverse ratio to their opportunity for knowledge. In many cases, their conviction was induced only by excitability which perhaps served to arouse credulity in them and acted as a persuasive interpreter of probabilities and possibilities. All the irrelevancies of rumours and canny guesses became hidden under a predisposition to believe the worst, created perhaps by the emotions normal to the victims of injury.
Keeping in view everything that can be said against the evidence adduced in this case in this respect and making every possible allowance for propaganda and exaggeration, the evidence is still overwhelming that atrocities were perpetrated by the members of the Japanese armed forces against the civilian population of some of the territories occupied by them as also against the prisoners of war.
The question is how far the accused before us can be made criminally responsible for such acts. As I have pointed out above, the charge against these accused is—
(1) that they ordered, authorized and permitted CERTAIN PERSONS to commit those acts and such persons actually committed them; (Count 54)
or (2) that they deliberately and recklessly disregarded their legal duty to take adequate steps to prevent the commission of such criminal acts. (Count 55)
It should be remembered that in the majority of cases “stern justice” has already been meted out by the several victor nations to the persons charged with having actually perpetrated these atrocious acts along with their immediate superiors. We have been given by the prosecution long lists of such convicts. The length of such lists given in evidence is in no way incommensurate with the devilish and fiendish character of the alleged atrocities. I believe no one will be able to accuse any of the victor nations of any mistaken clemency towards any of the alleged perpetrators of all these foul acts. These convictions can, I believe, be taken as having sufficiently quenched any resentment and satisfied any passion and desire for vengeance generated by such resentment. Even as ‘ acts of moral reconstruction’ and as ‘ the means by which the conscience of the world is re-asserting the dignity of the human race ’, such trials and convictions have not been inadequate in number.
We may now afford to proceed dispassionately to see if the guilt would reach these accused before us.
I would first of all consider the cases of atrocities committed against “the civilians then in the power of Japan belonging to” the various countries. For this purpose, I would prefer to take up counts 54 and 55 together.
The charges cover two different periods as follows:
1. In respect of atrocities in China the period is from 18 September 1931 to 2nd September 1945.
2. In respect of the atrocities in other theatres of war the period runs from 7 December 1941 to 2nd September 1945.
The evidence of atrocities really commences from the rape of Nanking after the fall of that city on the 13th December 1937. I would therefore take the first of the above periods as commencing from that date and subdivide it into the following sub-periods:
(а) The period from 13 December 1937 to 6th December 1941.
(b) The period from 7 December 1941 to the 2nd September 1945.
It should be remembered that besides alleging these atrocities generally in Count 54, the prosecution charged some specific instances of such atrocities committed in China in Counts 45 to 50.
Count 45 relates to the happening at Nanking. The period is given there as “on the 12th December 1937 and succeeding days”.
At that time accused HIROTA was the Foreign Minister, KAYA, the Finance Minister and KIDO, the Education Minister. No other accused was in the Cabinet at that time.
The army concerned was the Central China Area Army of which accused MATSUI was the Commander-in-Chief and accused MUTO was the Vice- Chief of Staff. Accused HATA replaced General MATSUI as Commander-in- Chief from the 17th February 1938. I shall consider the constitution of the Army in further detail later on.
So far, therefore, as the Nanking Incident is concerned no other accused comes into the picture. We must keep this clearly in view.
The next incident in China is the fall of the city of Canton, which event took place on the 21st October 1938. Count 46 contains specific charges of a- trocities alleged to have been committed there.
Of the accused before us accused ITAGAKI was the War Minister at that time, KIDO was the Welfare Minister and ARAKI, the Education Minister. Only these three accused were in the Cabinet at that time.
The Army concerned was the Central China Area Army as stated above, of which HATA was then the Commander-in-Chief.
These are the only accused who might have some connection with the a- trocities, if any, committed there. As I shall show presently, there is absolutely no evidence of this alleged atrocity.
The next instance of atrocities is given in the indictment as those happening at the fall of the city of Hangkow.
Count 47 specifically relates to this incident. The period is given as prior and subsequent to the 27th October 1938.
At this time also accused ITAGAKI, KIDO and ARAKI continued in the Cabinet as stated above, and the same army with the same Commander-in- Ghief was concerned with this event. As I shall indicate presently, I cannot accept as established any atrocity at this city, either.
These are the only three events which are specifically charged in the indictment during the first sub-period named above.
While giving evidence, the following instances were also introduced:
1. Alleged atrocities at the time of the capture of Soochow in Kiangsu Province in November 1937.
2. Instances of murder and destruction of houses in a village in Hupeh Province in 1937.
3. Instances of torture and murder of civilians in 1938, described by Colonel Kiang, Judge of Chinese Military Court for trying war criminals.
4. Instances of rape and murder in Peiping in 1940.
5. Instances of looting, burning and murdering of civilians in Suiyuan Province in 1940.
6. Instances of acts of robbery and wanton destruction of property at Liang Dung village in 1941.
7. Atrocities in the village of Si Tu Ti in Bing Ghuang District in Jehol Province in August 1941.
8. During the Second Ghangsa campaign in September 1941.
These are all the instances of atrocities in China during the period preceding the Pacific War.
Some of the cases of atrocities in China during the Pacific war are also specifically charged. These are to be found in counts 48, 49 and 50.
Count 48 relates to the atrocities alleged to have been committed in the city of Changsha. The date is given as prior and subsequent to 18th June 1944. As I shall show presently the evidence about this matter is anything but satisfactory.
At that time the following accused were in the Cabinet: TOJO, War, Prime and Home Minister, SHIGEMITSU as Foreign Minister, and SHIMA- DA as Navy Minister.
Accused TOGO ceased to be a member of that Cabinet on 1st September 1942 and accused KAYA ceased to be a member on 19 February 1944.
From March 1, 1941 to November 22, 1944 accused HATA was the Commander-in-Chief of the Expeditionary Force to China. These are the only accused who could be mentioned in connection with this incident. No one else had any connection whatsoever with it.
The next instance relates to the occurrences in the city of Hengyangi in the Province of Hunan. Count 49 relates to this incident. The date is given as prior and subsequent to the 8th August 1944. It must be remembered that the TOJO Cabinet fell by the 22nd of July 1944. At the date of this incident accused KOISO was the Prime Minister and SHIGEMITSU was the Foreign Minister. No other accused was in the Cabinet. Accused HATA was still Commander- in-Chief of the Expeditionary Force to China. The Prosecution did not adduce any evidence in support of this case.
Next comes the allegations of atrocities in the cities of Kweiling and Liu- chow in the Province of Kwangsi. Count 50 relates to this and the date is given as prior and subsequent to the 10th November 1944. Here again the evidence is not convincing and in my opinion the allegations have not been established. The connection of the accused with the incident continued to be the same as in the case of the city of Hengyang.
These are the only instances specifically mentioned in the Indictment. During trial, the following instances were also introduced through evidence:
1. Instances of wanton destruction of the property by the 65 th Regiment, 104th Brigade, 13th Division of the Japanese Army occurring in Hupeh Province in 1943.
2. The incident that took place in the village of witness Ti Shu Tang
in 1942.
3. Atrocity in Jenchiu Hsien in September 1943.
4. At the village Chuar Twen Tseng in 1945 by the 38 th battalion of the 4, 204th Japanese Army unit.
5. Occurrences in Kwangsi Province during 1944-45.
6. Looting by Japanese troops of Chinese civilians at the Salwin River in Burma Highway in May 1942.
Accounts of atrocities at other theatres of war were all introduced through evidence in this case. The prosecution, in summing up the evidence, separated the Philippine Islands from the rest of the theatres, and divided the entire period into seven divisions. We shall try to follow this division both as to place and time.
The division as to time stands as follows:
I. From the 7th December 1941 to 30th June 1942 II. From 1st July 1942 to 31st December 1942
III. From 1st January 1943 to 30th June 1943
IV. From 1st July 1943 to 31st December 1943
V. From 1st January 1944 to 30th June 1944
VI. From 1st July 1944 to 31st December 1944
VII. From 1st January 1945 to 2nd September 1945.
The places named in the summation are in the following order:
1. Ambon Island Group 2- Andaman and Nicobar Islands
3. Borneo
4. Burma and Siam
5. The Celebes and Surrounding Islands
6. China other than Hongkong
7. Formosa
8. French Indo-China
9. Hainan Islands
10. Hongkong
II. Japan 12- Java
13. New Britain
14. New Guinea
15. Singapore and Malaya
16. Solomon Islands, Gilbert and Ellice Islands, Nauru and Ocean islands
17. Sumatra
18. Timur and Lesser Sunda Islands
19. Wake Island, Kwajalein and Chichi Jima.
To this list I shall add the Philippine Islands as the 20 th item with a further subdivision in its case of the sixth period into one from 1st July to 8th October and the other, from the 9th October to the end of the year.
I shall place the incidents alleged to have taken place at each place separately, keeping in each case the occurrences during the periods named above distinct. At present I am giving only the occurrences relating to the “civilians in the power of Japan” belonging to the different countries as alleged in Count 54.
The Prosecution account of the atrocities committed against civilians in the power of Japan in different places stands thus:
1. AMBON ISLANDS GROUP:
There was no case of such atrocities during the first and third to seventh periods specified above. There was only one case during the second period. A witness named Van Nooten says that during this period a pregnant native woman was punched, knocked to the ground and kicked in the stomach by a Japanese guard in the presence of other guards. This is the only instance of atrocity against the civilians on this group of islands narrated by the Prosecution.
2. ANDAMAN AND NICOBAR ISLANDS:
There are no cases given for the first two periods and none during the fifth period. During the third period we are given two incidents: one in January 1943 and the other in March 1943.
The January item is evidenced by the statements of four different persons taken out of court. They all relate to cases of torture of individuals suspected as spies.
The March incident is evidenced by a similar statement of one Murad Ali, and that also relates to torture of persons suspected of espionage.
During the fourth period there is one case given of a coolie dying as a result of being beaten in August 1943.
During the sixth period, again one case is mentioned having taken place in October 1944 when an individual, suspected of theft of signal lamps, was tortured.
During the seventh period we are given four cases, three in July 1945 and one in August 1945. The first case is of two coolies being beaten to death for alleged stealing, and the second is of two Indians being beaten to death to compel them to confess having fired rockets. The case in August 1945 is that about 700 Indians were taken by sea towards another island. When 400 yards from shore they were forced overboard; all except 203 drowned. The remainder were left on the island without food for fifty days when the Japanese returned. The evidence in support of this case is again the statement of a man named Mohamed Hassen taken out of court. In this statement he claims to have been one of the party of 700 and the only one surviving.
3. BORNEO:
The first incident is of 27 December 1941. It is stated that 213 Indians were confined in one cell for day and night for one month. Later they were forced to work long hours on an airstrip. The evidence is again the statement
of a man named Naik Ghandgi Ram of 2/15 Punjab Regiment, taken out of court, and he seems to be the only escaping member of the group. He claims to have escaped by hiding in the bushes.
During the third period we are given three instances. The first two seem to relate to two prisoners of war. The first one relates to the maltreatment of a private Hinchcliffe; and the second, which happened in March 1943, speaks of how an Australian, whilst a member of a working party, was tied up by his wrists to a tree and beaten about the head.
The third one says that from early 1943 onwards throughout Western Borneo, Indian and Chinese women were arrested and forced into brothels.
For the fourth period we are given two instances: One happened in August 1943 and the other in October 1943. The August incident relates to one Sticpewich, who is alleged to have been put in a cage with six others. The October incident is evidenced by the affidavit of one Mrs. Hoedt. The statement says that at Bandjermasin, in October 1943, the governor of Dutch Borneo, Dr. Haga and some ten officials were executed as well as four men after a so-called trial. Among them was a Swiss minister, Dr. Fischer, the official delegate of the International Red Cross.
One would expect much better evidence for such an incident. At any rate, we do not know what was the trial for.
During the fifth period we are given twelve instances beginning from 13 February 1944 to June 1944.
In support of these incidents we are given what is called a report made by one Captain M. J. Dickson of the British Army and a statement out of court of one Hassan Inanam.
The report of Captain Dickson states that in October 1943 a revolt broke out in Jesselton, Borneo. About forty Japanese were killed. What happened thereafter was in retaliation of this incident.
4. BURMA AND SIAM:
For this theatre of war we are given fourteen instances for the entire seven periods: The first on 13 December 1941, the second in July 1942, the third between July and November 1942, the fourth in September 1942, the next one in September 1943. Then four instances are given from February 1944 to August 1944, and the remaining four in the year 1945. These are mostly evidenced by statements taken out of court. At the worst these are all stray instances of cruelty towards individuals covering a period of five years.
5. CELEBES AND SURROUNDING ISLANDS:
Here we are given nine instances of which two occurred in March 1942; the next two occurred in September and October 1943; and the rest during 1944 and 1945. There were no occurrences during the second and third periods.
The incidents of March 1942, strictly speaking, do not relate to civilian population at all. The first one is that at Menado five Dutch NCO’s, who
had participated in guerrilla activities and had been captured, were executed; and the second is about the maltreatment and execution of two Dutch NGO’s who had defended the aerodrome and had been captured.
In September 1943 we are told that at Foelic one native was beheaded and another bayonetted to death.
The incident of October 1943 is that at Pomala a seriously wounded flier was operated on without anaesthetic and he died within a few hours.
In January 1944 at Pare-Pare internment camp a Roman Catholic priest was thrashed to death.
In March 1944 at Lolobata a native was beheaded without trial.
In September 1944 at Soegita three natives were beheaded without trial. A fourth was attempted but he escaped somehow and gave this evidence.
In January 1945 at Tondane two Dutch internees were put in gaol and later executed for communicating with outside people; and in February 1945 at Menado a Dutch internee died from ill-treatment.
6. CHINA OTHER THAN HONGKONG;
There are no incidents during the first, second, fourth, fifth and sixth periods.
During the third period in August 1943 at Haiphong Road Camp a civilian internee was tortured to unconsciousness and subsequently died several days later.
On 2 April 1945 at China Matan a captured American airman, whose right leg was injured, had his foot amputated by a Japanese civilian using a crude knife and no anaesthetic.
7. FORMOSA:
No incident could be named for any of the periods, obviously because Formosans were not enemies of Japan.
8. FRENCH INDO-CHINA;
No incidents could be named during the first five periods. During the sixth period there was one incident in June 1944. As some cases of disloyalty appeared amongst the coolies bringing water to the camp, the Japanese seized a 19-year old boy who had just left work, bound him to a tree and beat him violently. He was found dead the next morning from strangulation.
During the seventh period we are given nine instances of atrocities occurring at this place. The evidence about these atrocities is the testimony of one Gabrillagues. His knowledge is based on his “Study of the Documentation of the War Crimes that the witness was making of the war crimes in Indo- China. The witness was a “delegate of the Service of the War Tribunal in In- do-China”. The witness says, “Being in charge of the investigation bureau for war criminal suspects, I have been led in the performance of my functions to study a comprehensive body of documents and this fact has permitted me to have cognizance of the war crimes committed in Indo-China by the Japanese
forces.”
The witness then continues,
“The number of these crimes is considerable, the documents containing them is voluminous and there could be no question of making a complete expose of them. Certain of them are and will remain unknown because of the absence of witnesses and the systematic destruction of their files carried out by the Japanese in anticipation of an allied landing. ” The materials on which the conclusion of this witness is based, of course, remain unknown to us. What we get is only the conclusion of the witness on materials which he considers sufficient for his conclusion. The other evidence of course are statements of persons taken out of court.
9. HAINAN ISLAND:
No instances of atrocities could be given for any period excepting the fourth. Only one instance is named for the fourth period.
On 17 July 1943, 120 Chinese from a coolie camp were bayonetted to death without trial. The evidence is the statement taken out of court of one A. F. Winsor.
10. HONGKONG:
We are given no incidents from the second to the seventh periods. Five incidents are given, all occurring in December 1941.
11. JAPAN:
Nil.
12- JAVA:
Fourteen instances are named occurring during the entire seven periods beginning from 12 March 1942 and ending in August 1945.
13. NEW BRITAIN:
We are given two cases during the first period, none during the second, three during the third, two during the fourth, one in the sixth and none in the seventh period. These are all stray cases. The evidence is mostly statements of persons taken out of court.
Though in the summation the Prosecution spoke of Australians and Chinese being captured or killed, these are mostly cases of Australian and Chinese soldiers being captured or killed.
14. NEW GUINEA:
There is one case during the first period; five during the second; none during the third, fourth and fifth period; one during the sixth period, and none during the seventh period. These are also stray cases and are evidenced mostly by statements of persons taken out of court. Most of the cases relate to captured soldiers.
15. SINGAPORE AND MALAYA;
We are given six instances during the first period, none during the second and third, four cases during the fourth period, and one during the fifth, sixth and seventh periods.
16. SOLOMON ISLANDS, GILBERT AND ELLICE ISLANDS, NAURU AND OCEAN ISLANDS:
Here we have no case during the first two periods; four cases during the third period; none during the fourth, fifth and sixth periods, and one during the seventh period.
The incident during the seventh period speaks of what happened at the conclusion of war. There were only one hundred natives left on Ocean Islands. The Japanese marched them away in two sections, they were shot and the dead bodies towed out to sea. The earlier incidents are all stray cases. The evidence is of the same
character.
17. SUMATRA:
We are given four cases during the first period, one during the second period, none during the third period, one during the fourth period, none during the fifth, and one each during the sixth and seventh periods.
18. TIMOR AND LESSER SUNDA ISLANDS:
We have one case for the first period, six for the second, one for the third, one for the fourth, none for the fifth, one for the sixth, and none for the seventh period. All these are stray cases, and the evidence is, as before, statements of persons taken out of court.
19. WAKE ISLAND, KWAJALEIN AND CHICHI JIMA:
We are given no instances from the second to seventh periods; only one instance is given for the first period.
In May 1942 an American civilian was badly beaten and then beheaded in the presence of Admiral Sakibara for an attempt at warehouse breaking.
20. THE PHILIPPINE ISLANDS:
During the first period we are given three incidents. In her affidavit Exhibit 1,417, Leonora Palacio stated that in the middle of February 1942 she, her two brothers and others were taken to the municipal building in Palo. At their home there had been a number of guerrillas and friends of the family. One of the guerrillas was discovered and the Japanese, believing there were others, took these people to the jail. These people were tortured there in various ways.
In May 1942 in Iloilo City, an American by the name of Dr. Gilbert Isham Cullen was questioned for several hours during which he was struck in the abdomen with a club, kicked while lying on the floor, flapped repeatedly with the heel of the hands of the inquisitor. He was tortured in various other ways.
About the middle of June 1942, a young woman was ordered by the puppet governor to go to the home of Colonel MINI in Tagbilaran. When she refused they threatened to kill her. Colonel MINI raped her. The following morning she jumped out of the window and succeeded in escaping to a nearby island.
These are the three incidents of the first period. During the second period, we are given an incident having taken place during July 1942 and another in August 1942. In support of the July incident we are given the testimony of Nena Alban, a nurse at the trial of General HOMMA. This witness saw many incidents. She saw four Filipinos being beheaded. She later saw two more and thereafter seven more who were made to kneel across a hole in the ground and were beheaded. She later saw ten more beheaded. She saw other atrocities. She saw Filipinos slapped, boxed, kicked and beaten. She saw four Filipinos being bayonetted later near San Beda College. She saw at least seven Filipinos have their tongues pulled out by pliers. It is unfortunate that an eye witness of so many incidents was not produced before us and we had simply what she stated before another tribunal where none of the present accused was represented. I would not for the present purpose accept this eivdence.
The incident of August 1942 is that one early dawn some Japanese soldiers from Dansalan City, under the command of four officers, raided the witness’s barrio, which had a popufation of about 2, 500. They immediately began bayonetting the people and burned down the whole barrio. This incident also is sought to be established by a statement taken out of court and we are not told why the witness could not be produced before us.
The incident during the third period is of March 13, 1943 when an old Filipino, Tayambong Chagsa by name was tortured for not telling the Japanese the whereabouts of the American and Filipino soldiers.
For the fourth period we are given five instances.
In August 1943, after an investigation of an hour, twenty-four men and three women were all tied with hands behind their backs and strung on a piece of rope and pulled to a thicket where they were beheaded. The evidence is a statement made out of court of one Jose G. Tupaz. The man did not come before the Tribunal.
On October 17, 1943 another punitive expedition arrived at Bataan. All civilians were investigated and beaten with clubs and made to walk through fire. In the morning the Japanese received orders to proceed and 140 civilians including two priests were beheaded by Japanese soldiers.
This we are told from a summary of evidence of JAG Report No. 140 on punitive expeditions on Panay Island by Japanese forces. This report may be admissible in evidence under the Charter but I cannot accept this as of much probative force on a grave matter like the one before us. I do not see why the materials on which this report might have been based could not be disclosed to us so that instead of having to rely on a conclusion of the report, we might see what conclusion we can ourselves arrive at.
On December 18, 1943 Japanese officers and enlisted men left Libacao
for Iloilo City. The next morning they entered Camp Hopevale which they surrounded and entered. Sixteen American and three others were placed under guard without food or water. On the afternoon of December 20, one American woman was seen kneeling with hands tied and asking for mercy. This was refused. An hour later a house was found in flames with twelve bodies in it, some of the victims having been bayonetted and others beheaded. This is also from the same JAG Report. I need not further comment on this evidence.
For the fifth period we are given an occurrence which took place in February 1944 when 35 Filipinos were questioned, beaten and taken to a corn field and there bayonetted. This story again is given on the strength of JAG Report No. 142.
In March 1944 a young woman was caught hiding in the grass. The officer-in-charge tore off her clothes and took her to a small hut and cut her breasts and womb. This is a statement taken out of court of a man Lorenzo Polito.
On April 10, 1944, six Japanese bayonetted one woman. On August 27, 1944, soldiers fired on people in the cockpit in Santa Catalina. On October 20, 1944, thirty were arrested and tortured. On November 15, 1944, three prisoners were beheaded. On December 27, 1944, several persons were tortured and on January 7, 1945, nine of the prisoners were beheaded. All this we are given from JAG Report No. 302.
On June 6, 1944, about 300 Japanese together with Filipino Constabulary and Moro troops entered Ranao-Filayan and gathered the civilians. On June 7, twenty prisoners were put in one house where they were bayonetted and the house set on fire. We are given this story also on the strength of JAG Report No. 302.
During the first half of the sixth period we are given two instances. One happening on August 19, 1944 and the other on October 1, 1944.
At about 9 o’ clock in the evening of August 19, 1944 the witness and others left Cebu and were taken to Cordova. When they arrived there the Japanese soldiers gathered all civilians in a central school house. The women were compelled to disrobe completely. Many of the men were beaten with clubs. All money and valuables were taken. The next morning three men were beheaded. The witness made this statement out of court and did not appear before the Tribunal.
On October 1, 1944, about fifty Japanese soldiers entered the hospital area at Barrio Umagos and bayonetted two Filipino guards and one civilian. Two bedridden patients were bayonetted to death. Three days later, the Japanese burned the buildings and about thirty-two houses and left. This is a- gain JAG Report No. 282. There is nothing else in support of it.
I need not give in detail the incidents taking place since November 1944. We are given several incidents taking place during this period and certainly these were atrocious misdeeds.
These are the instances of atrocities perpetrated by the Japanese army a- gainst the civilians at different theatres during the entire period of the war.
The devilish and fiendish character of the alleged atrocities cannot be denied.
I have indicated against each item the nature of the evidence adduced in support of the occurrence. However unsatisfactory this evidence may be, it cannot be denied that many of these fiendish things were perpetrated.
But those who might have committed these terrible brutalities are not before us now. Those of them who could be got hold of alive have been made to answer for their misdeeds mostly with their lives. We have been given by the Prosecution long lists of such criminals tried and convicted at different forums. The very length of such lists is sufficiently assuring that no mistaken clemency towards these alleged perpetrators of all such foul acts could find any place anywhere. We are, however, now considering the case of persons who had no apparent hand in the perpetration of these atrocious deeds.
It may at once be said that so far as this part of the case is concerned, there is absolutely no evidence of any order, authorization or permission as alleged in Count 54. There is nothing on the record which can in any way support the allegation of ordering, authorizing and permitting the commission of the offenses named in Count 53 and charged in Count 54. In this respect the case before us stands on a footing entirely different from what was found established by the evidence at the trial of the European-Axis-Major-War- Criminals.
As I have already pointed out, there were in evidence at the Nuremberg trial many orders, circulars and directives emanating from the major war criminals indicating that it was their policy to make war in such a reckless, ruthless way. We know that during the first World War, also, the German Emperor was charged with issuing directives like that.
The Kaiser Wilhelm II was credited with a letter to the Austrian Kaiser Franz Joseph in the early days of that war, wherein he stated as follows:
“My soul is torn, but everything must be put to fire and sword; men, women and children and old men must be slaughtered and not a tree or house be left standing.
With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in two months, whereas if I admit considerations of humanity it will be prolonged for years. In spite of my repugnance I have therefore been obliged to choose the former system.”
This showed his ruthless policy, and this policy of indiscriminate murder to shorten the war was considered to be a crime.
In the Pacific war under our consideration, if there was anything approaching what is indicated in the above letter of the German Emperor, it is the decision coming from the allied powers to use the ATOM BOMB. Future generations will judge this dire decision. History will say whether any outburst of popular sentiment against usage of such a new weapon is irrational and only sentimental and whether it has become legitimate by such indiscriminate slaughter to win the victory by breaking the will of the whole nation to continue to fight. We need not stop here to consider whether or not “the atom bomb comes to force a more fundamental searching of the nature of warfare and of the legitimate means for the pursuit of military objectives”.
It would
be sufficient for my present purpose 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 Prosecution seeks to build up its case in this respect inferential!/ from the alleged knowledge and inaction on the part of the accused concerned. It asserts that the evidence adduced in the case establishes that the Japanese Government had knowledge that war crimes had been and were being committed. From this factum of knowledge coupled with the fact that it made no effective attempt to prevent their continuance, we are invited to hold that such crimes were being committed as part of the government’s policy.
The Prosecution told us that in its summation the expression “Japanese Government” is used in a very wide sense as embracing not merely members of the Cabinet but also senior officers of the Army and Navy, ambassadors and senior career public servants. We must, therefore, take the expression as used here in that wide sense.
So far as the Nanking rape is concerned, the Prosecution claims to have established that the following persons had knowledge of it:
1. Accused MATSUI, who at that time commanded the Central China Expeditionary Force (Exhs. 25, 255);
2. The Japanese diplomatic officials in China;
3. The Foreign Office in Tokyo;
4. The Foreign Minister, accused HIROTA;
5. Accused MINAMI, who was at that time Governor General of Korea;
6. Nobufumi Ito, Japanese Minister at large in China;
7. The House of Peers; and
8. Accused KIDO.
For the knowledge of accused MATSUI, his own statement is relied on where he says that he was in Nanking on 17 December 1937 and remained there for one week before returning to Shanghai. He heard from Japanese diplomats as soon as he entered Nanking that the troops had committed many outrages there.
The defendant, General MUTO, then Adjutant to the Chief of Staff, stated that he went to Nanking with General MATSUI for the “taking-over” exercises and remained there for ten days.
The Prosecution points out that General MATSUI remained in command until February 1938, but that during the period no effective steps were taken to correct the situation.
As to the knowledge of the Japanese diplomatic officials, the evidence is of Dr. Lewis Smythe, who was secretary of the International Committee of the Nanking Safety Zone, organized by a group of German, British, American and Danish citizens who were in Nanking at the time of the fall of that city. Dr. Smythe was secretary of this committee from 14 December 1937
until 10 February 1938. His evidence is that the committee made daily personal reports to the Japanese Embassy in Nanking. Dr. Smythe says that the Embassy continually promised that it would do something about it, but it was February 1938 before any effective action was taken to correct this situation.
Dr. Bates, professor of history in the University of Nanking, who was a founding member of the International Committee for Safety Zone, in his evidence stated that almost daily for the first three weeks he went to the Embassy with a typed report or letter covering the preceding day, and frequently had also a conversation with the officials regarding it. These officials were Mr. T. Fukui, who had the rank of consul; a certain Mr. Tanaka; and the Vice- Consul, Mr. Yoyoyasu Fukuda. Mr. Fukuda is now secretary to the Premier, Yoshida.
According to Dr. Bates, these Japanese authorities were honestly trying to do what little they could in a very bad situation but they themselves were terrified by the military and they could do nothing except forward these communications through Shanghai to Tokyo. These officials in the Embassy also assured the witness that on several occasions strong orders were sent from Tokyo to restore order in Nanking. The witness also learned from the foreign diplomats and from a Japanese friend of his who accompanied the deputation, that A HIGH MILITARY OFFICER called together a large body of lower officers and non-commissioned officers, telling them very severely that they must better their conduct for the sake of the name of the army.
The witness further testified that the situation did not substantially improve until the 5th and 6th of February 1938 and that he knew that reports made to the Japanese Consulate in Nanking were sent by it to the Japanese Foreign Office in Tokyo. “After February sixth and seventh”, the witness said, “ there was a noticeable improvement in the situation, and although many serious crimes occurred between then and summer, they were no longer of a mass and intolerable character. ”
He further stated, “I have seen telegrams sent by Mr. Grew, the Ambassador in Tokyo, to the American Embassy in Nanking, which referred to these reports in great detail and referred to conversations in which they had been discussed between Mr. Grew and officials of the Gaimushoo including Mr. HIROTA”. Of course, he did not otherwise know if these reports were really sent to Tokyo and to whom they were sent.
According to the Prosecution “all reports concerning those atrocities were forwarded to HIROTA in addition to condemning press reports from the Foreign Press, but even when reports continued to come in, he did not press the question with the War Minister, nor refer it to the Cabinet”.
The evidence is that HIROTA communicated this to the then War Minister, General SUGIYAMA. The War Minister promised to take immediate steps and did send a strong warning. Accordingly, HIROTA assured Grew that “the strictest possible instructions had gone out from the General Headquarters to be handed down to all the commanders in China to the effect that these depredations must cease and that Major General HOMA had been sent to Nanking to investigate and to ensure compliance”. (Exh. 328)
It is in evidence that on January 19, Mr. Grew reported from Tokyo that HIROTA had taken action on Grew’s protest and that “a drastic measure to assure compliance by forces in the field with instructions from Tokyo is being considered”.
Accused MINAMI at that time was Governor General of Korea. He read reports of the atrocities in the press. I do not see how this helps the prosecution case in any way. This only shows that there were press reports of these a- trocities. No one denies that.
Nobufumi Ito, Minister at large from Japan to China from September 1937 to February 1938, testified that he received reports from members of the diplomatic corps and from pressmen that the Japanese Army at Nanking had committed various atrocities at the time. He further testified that he did not seek to verify these reports but sent a general resume of the reports to the Foreign Office in Tokyo, all of which were addressed to the Foreign Minister.
Foreign newspaper accounts of the atrocities were referred to in the Budget Committee of the House of Peers on the 16th of February 1938, after the situation had already been brought under control. The accused KIDO was present there. But I do not see how this fact supports the prosecution theory of government policy at all.
These criticisms and comments would rather go against any such hypothesis.
The above evidence no doubt shows that the reports of the Nanking a- trocities reached the Tokyo Government. The evidence also discloses that the Government did move in the matter and ultimately the Commander-in-Chief, General MATSUI, was replaced by General HATA. The atrocities also abated by the first week of February. I do not see why, from this evidence, we should be driven to the conclusion that such atrocities were the results of the policy of the Japanese Government.
The Prosecution contends that as, even after this Nanking Incident, similar atrocities were perpetrated subsequently in several other theatres of war, it would be legitimate to infer that the Government did not want to prevent the continuance of this atrocious conduct of the Japanese Army. The Prosecution claims that the evidence adduced establishes the following facts:
1. The Japanese Government acquired knowledge of the rape of Nanking and thereafter it had reason to be on its guard against the repetition of war crimes by the Japanese forces throughout the fighting in China and the Pacific War;
2. It acquired knowledge of the commission of other war crimes prior to the outbreak of the Pacific War;
3. It acquired knowledge of the commission of war crimes in almost every theatre of the Pacific War;
4. Yet it made no real attempt to prevent their continuance.
The contention of the Prosecution is that the above facts would be very cogent evidence of the fact that such crimes were committed as part of the Government's policy or that the Government was quite indifferent as to whether they were committed or not.
I would examine how far the evidence on the record would go to establish
the facts stated above by the Prosecution.
I would, first of all, take up the case of atrocities alleged to have been committed at Nanking. The Prosecution evidence is that when Nanking fell on 13 December 1937, all resistance by Chinese forces within the city ceased. The Japanese soldiers, advancing into the city, indiscriminately shot civilians on the street. Once the Japanese soldiers had obtained complete command of the city, an orgy of rape, murder, torture and pillage broke out and continued for six weeks.
During the first few days, over 20,000 persons were executed out of hand by the Japanese. The estimates of the number killed in and around Nanking within six weeks vary from 260,000 to 300,000, all of whom were practically murdered without trial. The accuracy of these estimates is indicated by the fact that the records of the Third Swastika Society and the Tsung Shan Tong shows that these two organizations between them buried over 1,55, 000 bodies. During the same period of six weeks, not less than 20, 000 women and girls were raped by Japanese soldiers.
This is the Prosecution account of the Nanking rape. As I have already pointed out, there is some difficulty in accepting the account given in its entirety. There have been some exaggerations and perhaps some distortions. I have already noticed some such instances. There were certainly some over- zealous witnesses whose evidence would require careful scrutiny.
I may mention here one particular witness whose name was Chen Fupao. The statement of this witness is Exhibit 208. In this statement he claims to have been eye-witness of thirty-nine persons having been taken away from the refugee area on the 14th December and having been machine-gunned and killed near a little pond. This, according to the witness, happened in the daytime in the morning near the American Embassy.
On the 16th he was taken by Japanese soldiers and again saw a lot of healthy young men being killed with bayonets. On the same day in the afternoon he was taken to Taiping Road and there saw three Japanese soldiers set fire to two buildings. He could even give the names of these Japanese soldiers.
This seems to me a somewhat strange witness. The Japanese seem to have taken such a special fancy to him as to take him to various places to witness their various misdeeds and yet spare him unharmed. This witness, as I have said, states that on the very second day the Japanese were in Nanking they took thirty-nine persons from the refugee area. The witness is definite that it was the 14th of December when this took place. Of this group, thirty-seven were killed on that very day. Even Dr. Hsu Chuan-ying could not say that any such thing happened on the 14th of December. He speaks of the Japanese behaviour of the 14th December in relation to the refugee camp, but does not say that anybody was taken away from the camp on that day.
Whatever that be, as I have already observed, even making allowance for everything that can be said against the evidence, there is no doubt that the conduct of the Japanese soldiers at Nanking was atrocious and that such atrocities were intense for nearly three weeks and continued to be serious to a total of six weeks as was testified to by Dr. Bates. It was only after February 6 or
7 that there was a noticeable improvement in the situation.
The defense did not deny the fact of atrocities having taken place at Nanking. It only complained of exaggerations and suggested that a number of the atrocities were committed by retreating Chinese soldiers.
There is absolutely no evidence about the atrocities in the City of Canton in 1938. The Prosecution introduced some evidence of atrocity here, but that related to the years 1941 and 1944.
The evidence relating to the year 1941 is Exhibit 351, being the statement of a man named Liu Chi-yuan taken out of court. The witness did not come before the Tribunal. The statement purports to narrate the incident of one single day. The entire statement stands thus:
“On the 21st day of the 12th month (lunar calendar), 1941, Japanese troops entered the city of Wei-Yang, Kwangtung. They indulged in a massacre of the Chinese civilians, bayonetting them all, male and female, old and young without discrimination. I was the eyewitness of more than 600 Chinese slaughtered by Japanese troops in such places as the West Lake, Wu Yen Chiao, Sha Shia, Zai Pu Chang, Ho Bien, Fu Cheng, Shiao Kung, Hsien Cheng, Chiao Si An, the outside of the West Gate and North Gate, Pai Sha. Many others were killed in various other places. Those killed by the Japanese amounted to approximately 2, 000 and they were all civilians. I escaped from the city and fled as far as Wu Yang Chaio where ten Japanese stabbed the left side of my abdomen with bayonets. I went through 20 days of medical treatment. The scar on my abdomen is an evidence. ”
The other evidence relates to the year 1944. It is also the statement of a man taken out of court. The statement is Exhibit 350. The name of the man is Wang Shi-Ziang. The entire statement stands thus:
“In the morning of July 4, 1944, the whole Japanese Kojo troops arrived at Hiang Doong village of the Shan District, a place then under my administration. They indulged in arson, robbery, slaughter, and numerous other atrocities. As a result thereof, 559 shops were burnt, and more than 700 Chinese civilians killed. The damage sustained in the destruction of properties amounted to more than 200, 000, 000 Chinese dollars, according to the estimation made in 1944. Besides, there were more than 100 Chinese civilians wounded by the Japanese soldiers. Those whose whereabouts are unknown since their escape from this village are not included in the above mentioned number.”
This is the entire evidence about the alleged atrocities in the Kwantung Province, However much we may consider ourselves free from any restrictive rules of evidence, I am afraid, we cannot entertain ourselves with similar relaxation in determining the probative force of any supposed evidence. I decline to attach any value to statements like these in a case of such gravity. I cannot believe that had atrocities been really committed in that province, the Prosecution could not have adduced any better evidence of the same.
I am not satisfied with the evidence of similar atrocities at Hankow. The only witness whose evidence in this respect is worthy of some consideration is
Albert Dorrence. The witness is the Manager, Standard Oil Company and was at Hankow during the latter part of October 1938. The Japanese occupation of Hankow took place on 27 October 1938. There were four or five American gunboats at Hankow at that time. The witness saw some atrocious incidents from these gunboats which he narrates in his examination-in-chief. The occupation took place in the afternoon.
The morning after the occupation the witness saw several hundred Chinese soldiers collected by the Japanese at customs wharf. At that time in the Yangtze River the water being extremely low gangplanks running about half a mile from the solid ground out into the river are used. The Chinese soldiers in groups of three or four were taken down this long gangplank and were being thrown into the water. They were shot when their heads appeared above the water. This witness along with others on the American gunboat was watching this. When the Japanese soldiers saw them doing that they stopped. After that they put a group in a steam launch at the same place, took that out in the stream and there threw them overboard and shot them when they came up.
The story is given by this witness only and unfortunately none of the other eye-witnesses have been examined.
It may be remarked here that practically for each kind of story only one witness is produced, may be to minimize the possibility of discrepancies and contradictions.
According to this witness, Chinese were being led down the gangplank and just at the point whence they were kicked into the river they were being physically examined. It is difficult to see why the Japanese felt the need of following this useless process of inspection right at the water edge.
In any case on the evidence of this witness alone I am not prepared to fasten any guilt of omission on the accused.
The evidence of two of the defense witnesses may be specially mentioned in this connection—both witnesses were before the Tribunal for cross-examination by the Prosecution and, in both cases, the Prosecution did not cross- examine them. Witness Yoshikawa was in charge of the rear staff members of the 6 th Division during the Hankow campaigh. At the termination of the war he held the rank of Lt. Colonel. The other witness, Yoshibashi, Kaizo, was a captain at the time of the attack upon Hankow and was attached to the staff of the Second Army. These witnesses gave us quite a different account from what was given by Mr. Dorrance. I do not see why we should not accept this evidence, specially when the Prosecution did not even suggest anything a- gainst their veracity.
The Prosecution admits that there is no evidence of the alleged atrocities at Hankow having ever been reported to the Japanese Government as in the case of Nanking. This is not a negligible factor in these days of propaganda.
Coming to the case of atrocities at Changsha again, the Prosecution relies on a statement taken out of court of one Hsieh-Chin-Hua. The statement is Exhibit 342 and it stands thus:
“After the Japanese forces had occupied Changsha, they freely indulged in murder, rape, incendiarism, and many other atrocities throughout the district.
“On 17 June 1944, more than 10 soldiers went to To-shih, Shi Shan, to plunder, One of them was however shot to death by the Chinese Chen Ni troops, and this greatly enraged the Japanese soldiers who thus hit upon retaliation against civilians. On that evening, more than 100 Japanese soldiers, armed with machine guns, visited the place again. They machine-gunned and then set fire to all houses from both ends of the streets. Over 100 business houses including stocks of goods were thus entirely reduced to ashes.
“I was one of the victims who managed to escape from the town. Deprived of all personal belongings by the fire, I became homeless and had to live on alms. ”
I wonder if this witness did not really manage to escape before anything could happen to the city. In any case, such a statement may be admissible in evidence under the Charter; but I cannot place any reliance on it. Defense witness Yokoyama was commander of the 11 th Army Corps that launched the attack on Changsha and occupied the city. He testified that there were no atrocities committed there.
The Prosecution introduced another such statement in order to show another instance of atrocity committed at Changsha. This statement is of one Tamura, Nobusada, lance corporal of the First Company, First Battalion, Second Independent Mounted Artillery Regiment of the Japanese Army. It is Exhibit 341 in this case and it relates to an incident alleged to have taken place in September 1941. So, this had nothing to do with the allegations in Count 48, which was alleged to have taken place in 1944. Moreover, the statement only shows some stray act of certain battalion, having nothing to do with any atrocity committed against any civilian population.
As regards the alleged atrocities committed at Hengyang, charged in Count 49, there is no evidence on record. The city is in the province of Hunan. Changsha also is in the same province. The Prosecution perhaps thought that the evidence relating to Changsha as noticed above would cover also this case. Whatever that be, so far as this particular city is concerned, there is absolutely no evidence to support this case.
Atrocities at Kueilin and Liuchow are alleged in Count 50. In support of this case, we have Exhibits 352 and 353.
Exhibit 352 is a statement signed by the president and vice-president of the city council at Kueilin, chairman of the board of directors of the Chamber of Commerce at Kueilin, two managing directors of the Chamber of Commerce of Kueilin, and the chairman and vice-chairman of the General Labour Union of Kueilin. It is dated May 21, 1946 and relates to atrocities committed by the Japanese troops in that city on a particular day in 1945.
Count 50 relates to certain incidents occurring in November 1944. The statement refers to what the Japanese troops stationed at Kueilin did a few days before their withdrawal from that city on the 28 th of July 1945, fearing that the communication between Kwangsi and Hunan might be cut off by the Chinese Army then pushing forward. The Japanese Army was in occupation of the city for nearly a year. The incident mentioned is alleged to have taken place only when they were forced to withdraw from that city.
The next exhibit, 353, is a statement purporting to be of nine citizens of Kueilin, dated 27 May 1946. This statement says that “during the period of Japanese occupation of Kueilin, which lasted about a year, they freely indulged in all kinds of atrocities such as rape and plunder, ” etc. The statement is very general. There might have been stray cases; even such stray instances would provoke similar statement from the villagers.
Defense witness Masuda, who took part in the capture of Kueilin, having been a staff officer of the Eleventh Army under the command of the com- mander-in-chief of the China Expeditionary Force, gave evidence in this case in court, and he was not cross-examined by the Prosecution. He denied that there was any atrocity committed there or that there was any disorderly conduct on the part of the Japanese troops.
Yokoyama, Isamu, who was the commander of the Eleventh Army Corps which attacked and occupied Changsha, Hengyan, Kueilin and Liuchow, also gave evidence in this case; and he, too, was not cross-examined by the Prosecution. He also denied any disorderly conduct of the troops.
The Prosecution evidence does not convince me of the account given therein.
I need not proceed to examine in detail the evidence relating to the other stray cases of atrocious acts introduced in the evidence in this case. The evidence in almost every case is of the same character.
At any rate such stray cases prove absolutely nothing for our present purpose.
The case of the Philippines is presented as another instance of organized mass atrocity, and the rape of Manila is likened to the rape of Nanking.
During the first period, we are given only three incidents, one happening in the middle of February 1942, another in May 1942 and the third in June 1942. These are all stray instances and, I believe, the actual perpetrators of these misdeeds have been adequately dealt with. For our present purpose such stray instances prove nothing. There is hardly any army of any of the Powers including the victors where similar stray occurrences did not take place.
The real “rape of Manila” begins at a time when the war takes its turn against Japan.
While considering the cases of atrocities in the Philippines we cannot attach much importance to what happened there subsequent to October 9,
1944. That was a period when it became impossible for the Japanese commanders to control the troops effectively. All lines of communications became destroyed or disorganized and the victorious American army was effectively blocking all lines of communication. Their failure to control the troops during this period cannot be ascribed to any disregard of duty, not to speak of any wilful disregard of such duty. We should remember that under the Charter “disregard of duty” itself, though deliberate and reckless, is not a listed crime and consequently is not within the competence of this Tribunal to try and punish. Disregard of duty is only a relevant evidentiary fact to establish that the actual criminal act was the act of the person who is said to have disregarded his duty.
If we analyze the evidence, it will appear that instances of the alleged a- trocious incidents were very rare during the first five periods mentioned above. There might have been some stray cases but such incidents are not at all unusual. There is no army or navy in the world which has not committed crimes of this nature. Those who committed such acts have, I believe, already been punished. I do not think that from such stray cases we can draw any conclusions as to the policy of the government; and it is this policy with which we are now concerned. The analysis given above will show that the real atrocities on a larger scale were committed during the latter part of 1944 at a time when the war had taken its turn against Japan and the Japanese Army got hopelessly disorganized.
It is difficult to make even the commanders of the army responsible for what was happening at that time. Such acts would not, in my opinion, even indicate any negligence or wilful omission on the part of the commanders in the field. It would be absurd to suggest that such conduct of the soldiers at that stage of the war would in any way reflect on the policy of the government, which was operating far away from the field, having at that time even no satisfactory means of communication.
On a review of the entire evidence on this point, I have come to the conclusion that the evidence would not entitle us to infer that the members of the government in any way ordered, authorized or permitted the commission of these offenses. Nor can I accept the Prosecution hypothesis that such offenses were committed pursuant to any government policy. There is no evidence, testimonial or circumstantial, concomitant, prospectant, retrospectant, which would in any way lead to the inference that the government in any way permitted the commission of such offenses.
I would, therefore, at once say that so far as ARAKI, HIRANUMA, HIROTA, HOSHINO, KAYA, KIDO, KOISO, MINAMI, OKA, OSHI- MA, SATO, SHIGEMITSU, SHIMADA, SUZUKI, TOGO and TOJO are concerned, I do not find any evidence which would entitle me to infer that they or any of them in any way ordered, authorized or permitted the commission of these offenses; or that there was any such inaction or omission on their part which would indicate that these were really pursuant to their policy or that they desired or intended that such acts be done. In my opinion, as members of the government, it was not their duty to control the troops in the field, nor was it within their power so to control them. The commanding officer was a responsible personage of high rank. The members of the government were certainly entitled to rely on the competency of such high-ranking officers in this respect.
Every government functions with the help of the appropriate machinery. These high-ranking members of the government were entitled to rely on the proper functioning of the machinery. There is no evidence in this case that there was any wilful distortion of this machinery. War is hell. Perhaps it has been truly said that if the members of the government can be tried and punished for happenings like this, it would make peace also a hell.
As the evidence stands, I cannot find any of the above persons guilty either of any criminal omission or commission in this respect.
The case of the persons in command of the armies involved would, however, stand on a footing different from that of the other members of the government. I would, therefore, consider their case separately.
Of the accused before us, the persons in command of the several armies concerned are DOHIHARA, HASHIMOTO, HATA, ITAGAKI, KIMURA, MATSUI, MUTO, SATO and UMEZU.
Commander-in-Chief of Eastern Army in Japan, 1943-44; Commander-in-Chief of 7th Area Army in Singapore, 1944—April 1945. Commander of Artillery Regiment which shelled the “Ladybird”, 1937.
Commander-in-Chief of Expeditionary Force in Central China, July 1940-44.
Commander-in-Chief of Japanese Army in Korea, July 1941—March 1945; Commander-in- Chief of 7 th Area Army in Singapore, April 1945—August 1945.
Commander-in-Chief of Japanese Army in Burma, March 1944 to the end of the war. Commander-in-Chief of Japanese forces in China, October 1937—February 1938 (Rape of Nanking —December 1937).
Commander of the 2nd Guards Division in Sumatra, 1943; Chief of Staff of 14th Area Army in the Philippines under General YAMASHITA in 1944.
8. SATO: Assistant Chief of Staff of China Expeditionary Forces, January 1945; then Commander of the 37th Division in Indo-China and in Thailand to the end of the war.
9. UMEZU: Commander-in-Chief of the Kwantung Army, 7
November 1939—18 July 1944.
The evidence on the record would not certainly entitle us to hold that these commanders ordered or authorized the doing of the atrocious things by the personnel of the army under their command. The evidence certainly is not such as would entitle us to hold that these commanders in any way instigated the soldiers to do these atrocious things. I would, therefore, at the very outset dispose of count 54 in this connection by saying that the charge contained therein in respect of civilian population has not been established against any of these accused.
There is, however, count 55 of the indictment. It is a well-established
principle in criminal law that liability may arise from omission as well as commission, though it is often problematic as to what circumstances give rise to such liability for omission. The assimilation of omissions to positive actions takes place only when there is a duty to act. Further, in order that an omission may be criminal, we must be sure that the event was causally connected with the inactivity.
In my opinion, these commanders were legally bound to maintain discipline in the army and to restrain the soldiers under their command from perpetrating these atrocities.
It is true that a commanding officer is not liable for the acts of those in his command merely because he is their superior officer; but, because of his great control over them, he should be responsible for such acts of theirs which he could reasonably have prevented. He had the duty to take such appropriate measures as were in his power to control the troops under his command.
This, of course, would not mean that a commander or a commander-inchief, in relation to the soldiers of the army under his command, stands in the same position as does a teacher in relation to his students in a classroom. We must not forget the actual area of operation of the army and the normal machinery provided wherewith the commander or the commander-in-chief is expected to exercise this control and on the proper functioning of which he is entitled to rely in this respect.
Accused General MATSUI was the Commander-in-Chief of the Central China Area Army which was responsible for the Nanking fall. He returned to Tokyo in February 1938 when General HATA replaced him on 17 February 1938.
On August 15, 1937 General MATSUI was appointed Commander of the Japanese Expeditionary Forces to Shanghai. On November 5 of the same year, the Imperial General Headquarters combined the then existing expeditionary forces to Shanghai and the tenth army to form the Central China Area Army, and appointed General MATSUI to be its commander-in-chief.
It was the duty assigned to the Central China Area to be over the headquarters of the Expeditionary Forces and of the Tenth Army, and unify the command of both armies. The duty consisted in co-ordination of a joint operation of both headquarters, the actual management and command of army strength being conducted by the commanding officers of each army. In each of the headquarters besides the staffs and the adjutants, there were the ordinance department, the medical department, the judicial department etc. But in the headquarters of the Central China Area Army there were no such personnel. (Exh. 2,577, R. P. 38, 900).
The Imperial General Headquarters issued on December 1, to the Central China Area Army an order to attack Nanking in concert with the Navy.
On December 5, the headquarter of Central China Area Army moved to Soochow, 140 miles away from Nanking. General MATSUI was then ill but he took action on important matters in his sick bed having consultation with his staff. (Exh. 341)
On December 7, another commander was appointed for the Expeditionary Forces to Shanghai. So, after this date, General MATSUI was the Commander-in-Chief of the Central China Area Army which comprised the Tenth Army under one Commander and Expeditionary Forces to Shanghai under another Commander.
Before carrying out the order of Supreme Headquarters to attack Nanking, General MATSUI issued orders to the Japanese Forces to the following effect:
“That Nanking was the Capitol of China and the capture thereof was an international affair; that therefore, careful study should be made so as to exhibit the honour and glory of Japan and augment the trust of the Chinese people, and that the battle in the vicinity of Shanghai is aimed at the subjugation of the Chinese Army, therefore protect and patronize Chinese officials and people, as far as possible; that the Army should always bear in mind not to involve foreign residents and armies in trouble and maintain close liaison with foreign authorities in order to avoid misunderstandings.”
Whereupon the Chief of Staff of the Expeditionary Forces, INUMA, and others, immediately transmitted the above-mentioned orders to all officers and men under General MATSUI's command. The Chief of Staff of Central China Area Army, TSUKADA, and six staff officers under him, prepared an order to the following effect:
1. The Central China Area Army intends to capture Nanking Castle.
2. The Shanghai Expeditionary Forces and the Tenth Army shall capture Nanking in accordance with the main points as to the capture of Nanking.
The main points, in the order as to the capture of Nanking, referred to above, were set out as follows;
1. Both Armies (Shanghai Expeditionary Forces and the Tenth Army) shall stop and prepare for capture of Nanking at the point 3 or 4 kilometers away from Nanking Castle when they so far advance.
2. On December 9th, scatter from airplanes, the bills advising surrender of the Chinese Army, stationed within the Castle of Nanking.
3. In case of surrender of the Chinese Army, only the two or three battalions, chosen from among the various divisions and military police, shall enter the castle and guard the assigned area within the castle as indicated in the map. Especially, perfectly carry out the protection of foreign interests and cultural facilities, as indicated on the map.
4. In case of the Chinese Army refusing to surrender, begin attack a- gainst Nanking Castle on the afternoon of December 10. Even in this case, the movements of the troops that enter the castle shall be the same as described above, especially making military discipline and morality very strict and restoring peace within the castle.
Simultaneously with the preparation of the above-mentioned order, AN INSTRUCTION was formulated under the head “Matters to be Borne in Mind regarding Capture of and Entry into Nanking Castle”.
The substance thereof was as follows:
1. Entry of the Imperial Army into a foreign capital is a great event in our history and one that is to be perpetuated in history, attracting the attention of the world. Therefore let no unit enter the city disorderly; let the various units of ours be careful not to shoot one another; and above all let them be absolutely free from unlawful deeds.
2. Let the discipline and morality of every unit be especially strict thereby earning the respect and submission of the Chinese Army for the imposing air of the Imperial Army; and insure that no act whatsoever, which tends to disgrace honour, be perpetrated.
3. Absolutely observe off-limits of zone of neutrality especially established by the foreign diplomatic corps, except for cases of necessity, disposing sentry on needed points, to say nothing of absolutely refraining from encroaching upon foreign rights and interests in accordance with the map shown elsewhere. Beside, entry into Chungshan Mausoleum and the cemetery of other Revolutionary heroes as well as the Mausoleum of Emperor HSIAO, Ming Dynasty, is strictly prohibited.
4. The units to enter the Castle shall be the one especially chosen for that purpose by the division commanders concerned; let them know beforehand the matters to be remembered and the positions of foreign rights and interests in the Castle; let them be absolutely free from plunder; dispose sentry, if needed.
5. Plundering and causing fires, even carelessly, shall be punished severely. Together with the troops, let many military police and auxiliary police enter the Castle, and thereby prevent unlawful conduct.
On December 17, General MATSUI entered Nanking and learned from reports that, notwithstanding his strict warning, there were breaches of military discipline and morality. He ordered strict compliance with his former orders and removal of the troops in the Castle to the region outside the Castle. TSUKADA, Chief of Staff, and his subordinate staff officers, investigated the quartering capacity in the region outside of the Castle but found that the region concerned was unfit for quartering troops. (Exh. 2,577)
On December 19, therefore, the Tenth Army was sent back to the Wuho area of the Shanghai Expeditionary Forces. The 16th Division, alone, was assigned to remain in Nanking for guard duty and the other units were ordered to evacuate, one after another, to the northern shore of the Yangtze and Shanghai area. (Exh. 3, 454)
After the General had returned to Shanghai with his staff officers, HE AGAIN HEARD RUMOURS of the unlawful acts of the Japanese Army in Nanking. On hearing this, he ordered a staff officer to transmit the following instruction to the Chief of Staff of the Expeditionary Force to Shanghai on the 26th or the 27th of December:
“It is rumoured that illegal acts are being committed in Nanking by Japanese troops. As I gave instructions on the occasion of the entry ceremony
into Nanking, no such acts should be taken under any circumstances for the honour of the Japanese Army. Especially, because Prince ASAKA is our Commander, military discipline and morals must be even more strictly maintained. Anyone who would misconduct himself must severely be punished. As for damage done, measures should be taken that they may be compensated or returned. ” (Exh. 2,577)
The steps thus taken by General MATSUI proved ineffective. But there is no suggestion that these were in any way insincere. On this evidence, I cannot ascribe any deliberate and reckless disregard of legal duty on the part of General MATSUI in this respect.
The Prosecution lays stress on the fact that there was an inadequate number of punishments in this case. As I have pointed out above, a commander- in-chief is entitled to rely on the efficient functioning of the machinery supplied for the purpose of enforcing discipline in the army. The army certainly was provided with personnel whose function it was to prosecute the offenders. It is in evidence that this part of the mechinery did function.
I do not believe that it is the function or duty of a commander-in-chief to proceed to prosecute such offenders. There were rumours and reports of atrocities coming to the commander-in-chief. He adequately expressed his disapproval, and he was entitled thereafter to rely on the two commanders of the two armies as also on the other high officials charged with the duty of maintaining discipline and meting out justice. We must also remember that General MATSUI was ill at that time and was relieved of his duty within a few weeks of these occurrences.
The position of a commander-in-chief of any army would be intolerable if he be not allowed, even for such a short period, to wait and see whether the machinery is adequately functioning. In my judgment, the evidence does not disclose any such inaction on his part as would entitle us to hold him criminally liable for what happened at Nanking in respect of the civilian population.
So far as this part of the case is concerned, there is no evidence against DOHIHARA, HASHIMOTO, ITAGAKI and UMEZU. As I have shown above, no satisfactory evidence of atrocities towards civilian population by the troops under their command during their command could be adduced which would entitle us to ascribe any such act to any criminal omission on their part.
As regards HATA, the evidence is that after the Nanking Incident MATSUI returned to Japan in February 1938 and General HATA succeeded him on 17 February 1938. Since then the atrocious conduct was notably brought under control though there still were some stray cases. In my opinion, the evidence would not justify a finding of inaction on the part of General HATA and would not sustain an inference of any causal connection of those stray incidents with any inactivity or omission of the Commander-in-Chief.
I have given above my view of the evidence relating to the atrocities alleged to have been committed during subsequent campaign. The Prosecution in my opinion, has failed to establish this part of the case.
In my judgment, therefore, accused HATA should be found not guilty of this charge.
KIMURA was Commander-in-Chief of the Japanese Army in Burma from March 1944 to the end of the war. No satisfactory evidence of any atrocities perpetrated against the civilian population of Burma during this period is on record which would entitle us to ascribe such acts to any criminal omission on the part of this accused.
SATO was Commander of the 37 th Division in Indo-China and in Thailand from January 1945 to the end of the war. The evidence adduced by the prosecution regarding the maltreatment of the civilian population there during this period is worthless and I do not consider it safe to act on such evidence.
MUTO was Commander of the Second Guards Division in Sumatra in 1943 and Chief of Staff of the 14th Area Army in the Philippines under General YAMASHITA in 1944. There is evidence of atrocities towards the civilian populations of Sumatra and of the Philippines. The evidence on record relating to such atrocities in Sumatra refers to a period prior to MUTO’s command. As regards Philippines, Exhibits 1,355 to 1, 489 were given in evidence to establish these acts of atrocities. Witnesses Wanda O. Warff, S. B. Moody, Donald F. Ingle, gave evidence in Court about these acts. General YAMASHITA was in command of the Army and he has already been tried and punished for these acts.
MUTO was the Chief of Staff of the Army. I have already given my reason why I cannot make any of the authorities responsible for what was happening in the Philippines at that time.
I do not think the shelling of the ‘Ladybird’ is within the competence of this Tribunal to try. The matter was completely settled long before the present war commenced. The Prosecuting Powers would have been well advised not to seek thus to re-open such settled matters. Undoubtedly it would have been more dignified and graceful on their part to refrain from raking up matters which they themselves got settled otherwise to their complete satisfaction, even if they had nothing else to complain against their vanquished enemy.
WAR GRIMES STRICTO SENSU
IN RELATION TO PRISONERS OF WAR
I would now take lip the charges in Counts 54 and 55 of the Indictment in relation to the prisoners of war.
As I have noticed before, the crimes are mentioned in Appendix D of the Indictment. Sections 1-8 of Appendix D enumerate such crimes.
The crimes are alleged to be in breach of the laws and customs of war including those contained in the conventions, assurances and practices referred to in Appendix D.
The laws and customs of war and the conventions, assurances and practices that are referred to in Appendix D are the following:
1. The laws and customs of war as established by the practice of civilized nations.
2. The Convention No. 4, done at The Hague on the 18th of October 1907, concerning the laws and customs of war on land.
(a) The regulations set out in the annex to the said Convention and forming part thereof.
3. The Convention No. 10, done at The Hague on the 18th of October 1907, concerning maritime war.
4. The international convention relative to the treatment of prisoners of war, done at Geneva on the 27th of July 1929 (hereinafter called the Geneva Convention) .
(a) Although Japan did not ratify the said Convention, it became binding upon her.
5. The international convention for the amelioration of the condition of the wounded and sick in armies in the field, done at Geneva on the 27th of July 1929 (known as the Red Cross Convention).
6. The assurances as per communications signed by the Foreign Minister TOGO.
(a) (i) Communication dated the 29th of January 1942, signed by TOGO and addressed to the Swiss Minister in Tokyo, assuring that the Geneva Convention will apply mutatis mutandis to American prisoners of war. (ii) A communication dated 30 January 1942, addressed to the Argentine Minister in Tokyo, assuring that The Geneva Convention will be applied mutatis mutandis to English, Canadian, Australian and New Zealand prisoners of war.
(b) A communication dated the 29 th of January 1942, whereby Japan assured that she observes strictly the Red Cross Convention.
(c) A communication dated the 13th of February 1942, signed by TOGO and addressed to the Swiss Minister in Tokyo, assuring that the Imperial Government will apply during the present war, on condition of reciprocity, the provisions relative to the treatment of prisoners of war of the Convention of 27 July 1929 to enemy civilian internees.
(d) The above mentioned assurances were repeated by the Japanese
Foreign Minister on several occasions, as recently as the 26th of May 1943.
Coming to the particulars of the breaches of these conventions and assurances, the Prosecution gives them in eight sections.
Section 1 of Appendix D charges inhuman treatment, contrary to Article 4 of the Annex to the Hague
Convention 4 of 1907 and the whole of the Geneva Convention 1929 as also to the said assurances.
Section 2 charges illegal employment of prisoners of war labour, contrary to Article 6 of the said Annex to the Hague Convention and to Part 3 of the Geneva Convention as also to the said assurances.
Section 3 speaks of refusal and failure to maintain prisoners of war, contrary to Article 7 of the said Annex to the Hague Convention and Article 4 and Part 3, Articles 9-12 of the said Geneva Convention.
Section 4 complains of excessive and illegal punishment of prisoners of war, contrary to Article 8 of the said Annex to the Hague Convention, Part 3, Section 5, Chapter 3 of the said Geneva Convention.
Section 5 deals with mistreatment of the sick and wounded, medical personnel and female nurses, contrary to Articles 3, 14, 15 and 25 of the said Geneva Convention and Articles 1, 9, 10 and 12 of the said Red Cross Convention.
Section 6 complains of humiliation of prisoners of war, especially officers, contrary to Article 8 of the said Annex to the Hague Convention and Articles 2, 3, 18, 21, 22 and 27 of the Geneva Convention.
Section 7 charges refusal or failure to collect and transmit information re prisoners of war and replies to inquiries on the subject, contrary to Article 14 of the said Annex to the said Hague Convention and to Articles 8 and 77 of the Geneva Convention.
Section 8 speaks of obstructions of the rights of the protecting powers, of Red Cross societies, of prisoners of war and of their representatives, contrary to Article 15 of the said Annex to the said Hague Convention, and to Ariticles 31, 42, 44, 78 and 86 of the said Geneva Convention.
In its summation of the evidence, the prosecution claimed to have established the following:
1. That the war crimes, of which evidence has been given, were in fact committed;
2. That they were committed in some cases as a part of the policy of the Japanese Government;
3. That in the remaining cases the Government was indifferent as to whether they were committed or not.
The prosecution used the expression “Japanese Government” in this connection in a very wide sense as embracing not merely members of the Cabinet but also senior officers of the army and navy, ambassadors and senior career public servants.
The evidence is overwhelming to establish maltreatment of the prisoners of war in various ways. It will serve no useful purpose to discuss this evidence in detail. The actual perpetrators of these brutalities are not before us. Those
of them who could be got hold of alive have been adequately dealt with by the allied powers.
We have now before us a different set of persons, who were at the helm of affairs in Japan during the war and who are sought to be made responsible for those brutal atrocities roughly on the ground that these were the result of the policy adopted by Japan at their instance in making the war in that ruthless manner.
The alleged criminal acts committed in relation to the prisoners of war are not all of the same category. They are not all criminal per se. Some of them are alleged to be criminal by reason of their being in violation of the conventions and assurances. Others are alleged to be criminal per se. We shall have to keep them distinct for our present purpose and see how far we can make any of the present accused criminally liable for such acts.
Mr. Carr for the prosecution invited us to hold the accused criminally liable because of the following factors:
1.
(a) That the Government of Japan was in effect bound by the
Geneva Convention of 1929 or (b) failing that,
(i) They were unquestionably bound by the Hague Conventions Nos. 4 and 10 of 1907,
(ii) All the conventions are merely declaratory of international law,
2.
(a) That the prisoners of war are in the power of the capturing
Government and not of the individuals or corps which capture them.
(b)
(i) No Government or member of it can evade responsibility by trying to shift it on to a particular department.
(ii) The main responsibility remains with every individual member of the government.
3.
(a) All persons who have power to control the acts of others who commit breaches of the laws of war and (i) who, knowing that such breaches have been committed, take no steps to prevent their repetition or (ii) who, having reason to anticipate violation of the laws of war by persons under their control, fail to take proper measures to prevent their occurrence or (iii) who, having a duty to ensure that their colleagues conform to the laws of war, neglect to perform that duty are themselves guilty of offenses against the laws of war.
(b) In fixing responsibility for violations of the laws of war upon such persons, it may be necessary that they should have knowledge
(i) that the atrocities are likely to be committed or (ii) have been committed.
(c) Once it is shown that a person
has the knowledge
ought to have the knowledge that atrocities are likely to be committed or have been committed by others, a duty immediately arises to exercise the power of control, their duty was to bring the matter before the cabinet, and failing to get satisfaction, to resign.
No person can rid himself of responsibility if he deliberately omits to make enquiries.
When a state of things is widespread and notorious, there is a prima facie presumption of knowledge which calls for rebuttal by the defendants.
As regards the law applicable to the case, the prosecution referred us to Appendix D of the Indictment and submitted that its legal argument on this subject was fully set out there.
Appendix D gives in its paragraphs marked 1, 2, and 3 the relevant provisions of the conventions and regulations relied on by the prosecution in this respect. I have given above the conventions and assurances named therein.
As regards the applicability of the Geneva Convention of 1929 the prosecution position is given in the Appendix thus:
“Although Japan did not ratify the said Convention, it became binding upon her for one or more of the following reasons:
“(a) It was signed on the said date by or on behalf of forty-seven nations, including Japan and each of the nations bringing the charges in this Indictment, and ratified by over forty nations, and thus became part of evidence of the Laws and Customs of war.
“(b) A communication dated the 29th January 1942, signed by TOGO, Shigenori, one of the accused, as Foreign Minister on behalf of Japan, addressed to the Swiss Minister in Tokyo, contained the following statement:
‘Although not bound by the Convention relative to the Treatment of Prisoners of War, Japan will apply mutatis mutandis, the provisions of that Convention to American prisoners of war. *
“In a communication dated on or about the 30th January 1942, addressed to the Argentine Minister in Tokyo by TOGO, Shigenori, one of the accused, as Foreign Minister on behalf of Japan, it is stated:
‘The Imperial Government has not yet ratified the Convention of 27 July 1929, regarding the treatment of prisoners of war. They are not therefore subject to the said Convention. None the less, they will apply mutatis mutandis the conditions of that Convention to English, Canadian, Australian and New Zealand prisoners of war in their power. With regard to supply of food and clothing to prisoners of war, they will consider on condition of reciprocity national and racial customs of the prisoners."'
“By the said communications or one of them, Japan acceded to the said Convention in accordance with Article 95 thereof, and the state of war then existing gave immediate effect to such accession.
“(c) The said communications constituted assurances to the United States of America, the United Kingdom of Great Britain and Northern Ireland, Canada, Australia and New Zealand, to whose governments the said communications were intended to be, and were, repeated by the respective recipients thereof, and in each case to all nations who were at war with Japan. “Except in the said matters there are no provisions of the said Geneva Convention to which the expression ‘mutatis mutandis’ could properly be applied. ”
As regards the International Convention for the Amelioration of the Condition of the Wounded and Sick, the Appendix asserted thus:
“Japan was a party to the said Convention, together with over forty other nations, which thus became part or evidence of the Laws and Customs of War. In the above mentioned communication dated on or about the 29th January 1942, Japan stated:
“‘Japan observes strictly the Geneva Convention of 27thJuly 1929, relative to the Red Cross, as a state signatory of that Convention. ’
“A communication dated the 13th February 1942, signed by TOGO, Shigenori, one of the accused, as Foreign Minister on behalf of Japan, addressed to the Swiss Minister in Tokyo, contained the following statement:
“ ‘ The Imperial Government will apply during the present war, on condition of reciprocity, the provisions relative to the treatment of prisoners of war of the 27th July 1929, the enemy civilian internees, as far as applicable to them, and provided that labour will not be imposed upon them contrary to their free choice.'"
The said communication constituted an assurance to all the nations at war with Japan (who in fact carried out the provisions of the said Convention as applicable to Japanese civilian internees) other than the Republic of China.
“The above-mentioned assurances were repeated by the Japanese Foreign Ministry on several occasions, as recently as the 26th May 1943.”
At the final summation, the prosecution ascribed a sinister significance to the factum of non-ratification by Japan of the Geneva Convention, which would indeed have a pertinent bearing on the question just before us. According to the prosecution, there had already been the over-all conspiracy for aggressive war at the time when the question of ratification of the convention came up and the ratification was opposed and ultimately denied because the opposing group had already formed this policy of brutal treatment of the prisoners taken during the designed war.
The Prosecution seriously urged this contention and adduced evidence in support of it.
Japan had signed the Geneva Prisoner of War Convention in 1929 and in 1934 the question arose as to whether the Emperor should ratify it. The Army and Navy petitioned against ratification, the Navy supplying reasons for its petition (Exh. 3, 043 and 3, 044, pp. 27,177-81).
The documents embodying these reasons are summarized by the Prosecution as follows:
1. The obligations are unilateral since no Japanese would become a prisoner of war;
2. Article 86, enabling Protecting Powers to interview prisoners of war without observance would be dangerous to military security;
3. The ratification of the Convention would double the range of enemy aircraft as, having completed their mission, the crew could land on Japanese territory secure in the knowledge that they would be well treated ;
4. Prisoners of war could not be so severely punished as Japanese soldiers, and this would involve a revision of Japanese military and naval disciplinary codes to put them on an equal footing, a revision which was undesirable in the interest of discipline.
The Prosecution then contends that the objections are baseless inasmuch as the Geneva Convention practically stood on the same footing as the Hague Convention of 1907, which had been ratified by Japan.
The Prosecution says; “The only penal provision of the Hague Convention relevant to our present purpose is Article 8. This corresponds almost in terms with Articles 45 and 50 of the Geneva POW Convention of 1929 and so in that respect the two Conventions may be said to cancel out each other. The only other material provision restrictive of punishment in the Geneva Convention are those contained in Article 46—‘Any corporal punishment, any imprisonment in quarters without daylight and, in general, any form of cruelty is forbidden. Collective punishment for individual acts is also forbidden’. ”
“It was these restrictions that the Japanese Government wished to avoid. It wished to prevent the right to ill-treat prisoners under the guise of punishment and so to deter airmen from raiding the country. The ill-treatment of prisoners was to be a matter of government policy.
It should, however, be remembered that these reasons were given not by the Government but by the Navy, and that was done in 1934, long before the war commenced.
The Army also objected to the ratification, but, without giving any specific reason. (Exh. 3,044)
TOJO dealt with the Geneva Convention in paragraph 132 of his affidavit thus:
“As to the Geneva Protocol, it was not ratified by Japan. As a matter of fact the Japanese conception regarding prisoners of war differs from that of Europeans and Americans. Furthermore, differences in every day living conditions, as well as customs and manners between Japanese and other nationals, together with the enormous number of prisoners covering such a vast area and embracing many different races, plus the acute shortage of various materials and supplies, made it impossible for this country to apply the Geneva Protocol verbatim.
“The statement that the Japanese conception regarding P. O. W.’s differs from that of Europeans and Americans means that from ancient times the Japanese have deemed it most degrading to be taken prisoner, and all combatants have been instructed to choose death rather than be captured as a P. O. W.
Such being the case it was considered that a ratification of the Geneva Protocol would lead public opinion to believe that the authorities encouraged them to be captured as prisoners, and there was fear that such a ratification might conflict with the traditional idea concerning P. O. W.s and this fear had not been dispelled up to the beginning of this war. In response to an inquiry from the Foreign Office regarding the Geneva Protocol the War Ministry replied that although it could not announce complete adherence to this Protocol, it perceived no objection to the application, with necessary reservations, of its stipulations concerning Prisoners of War. In January 1942 the Foreign Minister announced through the Ministries of Switzerland and Argentina that Japan would apply the Protocol with modification (Junyo) (Exhibits, 1,469 ; 1,957).
By the term ‘ apply with modifications’ (Junyo) the Japanese Government meant that it would apply the Geneva Protocol with such changes as might be necessary to conform to the domestic law and regulations as well as the practical requirements of existing conditions
It must be remembered that in 1934 the OKADA Cabinet was in office. There is no allegation against this Cabinet. The only accused who was in this Cabinet is HIROTA. He was Foreign Minister in it. It is not even suggested by the prosecution that this Foreign Minister had any hand in this non-ratification. The then War Minister and Navy Minister are not alleged to have been in the conspiratorial group. The then Prime Minister OKADA has given evidence in this case on behalf of the prosecution. Not a word about this nonratification was put to him.
As I have pointed out already, in 1934 neither the Japanese Government nor the Army and the Navy were contemplating the Pacific War. At any rate they cannot be credited with any foresight of the extraordinary phenomena that took place during this war.
An unusually large number of troops surrendered during this war. Sometimes the surrendered army was much larger than the Japanese army on the spot to which the surrender was made. Last year an account was published in America of a Secret Session of British Parliament in which Mr. Churchill stated that 1,00, 000 British in Malaya surrendered to 34, 000 Japanese. This extraordinary fact made the administration of the prisoners of war a really difficult one and contributed largely to what happened to these prisoners. I shall deal with this matter later. It is absurd to suggest that the Japanese were contemplating all this in the year 1934 and were therefore refusing to ratify the Convention.
In order to appreciate the reasons given by the Army and the Navy for recommending non-ratification of the Convention, we must not forget the
Japanese no-surrender policy. “Any occidental army which has done its best and finds itself facing hopeless odds surrenders to the enemy, they still regard themselves as honourable soldiers and by international agreement their names are sent back to their countries so that their families may know that they are alive. They are not disgraced either as soldiers or as citizens or in their own families.”
But the Japanese define this situation differently. With them, “honour is bound up with fighting to death”, “in a hopeless situation a Japanese soldier should kill himself with his last handgrenade or charge weaponless against the enemy in a mass suicide attack. But he should not surrender. Even if he were taken prisoner when he was wounded and unconscious, he could not hold up his head in Japan again; he was disgraced; he was dead to his former life. . . ”
There was no need of special official introduction at the front about this. “The army lived up to the code to such an extent that in the North Burma campaign, the proportion of the captured to the dead was 142: 17, 166. That was a ratio of 1:120, and of the 142 in the prison camps, all except a small minority were wounded or unconscious when taken; only a very few had surrendered singly or in groups of two or three. In the armies of the occidental nations it is almost a truism that troops cannot stand the death of one-fourth to one-third of their strength without giving up; surrenders run abou 4:1.” This is what Miss Ruth Benedict says. Miss Ruth Benedict was assigned by the United States office of War Information in 1944 to the study ofJapan.
This indicates the real feeling of the Japanese army and navy and explains their opposition. Justifiable or not, this was the Japanese mental makeup and the decision as to non-ratification was arrived at on a careful consideration of what occurred to them to be worthy of consideration. Rightly or wrongly, Japan considered these rules as likely to retard the efficiency of military operations. The real sanction of the rules of war is considered to lie in the fact that their observance is in the interest of all concerned. It is indeed absurd to suggest that in 1934, the Army and the Navy were designing to maltreat the prisoners of future war or wars.
I cannot accept the Prosecution contention that, by the communications referred to in Appendix D, Japan acceded to the Geneva convention in accordance with Article 95 thereof.
The Geneva, convention, by its Article 91, requires that the convention shall be ratified as soon as possible.
Article 93 provides that the convention shall be open for adherences given on behalf of any country in whose name this convention was not signed.
Article 94 provides how adherence shall be given by written notification addressed to the Swiss Federal Council.
Article 95 says that a state of war shall give immediate effect to ratifications deposited and to adherences notified by belligerent powers prior to or after the outbreak of hostilides.
As the convention stands, Japan being one of the original signatories, no question of adherence can arise in her case. Adherence is open only on behalf
of a country in whose name the convention was not signed. Further, the formalities required by Article 94 were not observed in this case.
The convention had to be ratified by Japan. Admittedly, Japan did not ratify it. Article 95, therefore, has no application so far as Japan is concerned. Japan neither deposited ratifications nor notified adhérences. Of course, in my view, adherence was not at all open to Japan.
The question whether the convention would have any legally binding effect on Japan because of its having been signed on behalf of that country would really depend upon how we interpret Article 92 of the convention.
Article 92 says: “The present convention shall become effective six months after the deposit of at least two instruments of ratification. Subsequently, it shall become effective for each high contracting party six months after the deposit of its instrument of ratification. ”
The minimum number of instruments of ratification required by this article had been deposited and consequently the convention became effective. Japan was one of the high contracting parties in the sense that the convention was originally signed on her behalf; but, as there was no deposit of any instrument of ratification on her behalf, the covenant could not be effective FOR HER.
As I read Article 92, this convention, without the instrument of ratification, did not become effective in any way so far as Japan is concerned. Reading the whole convention, I cannot construe this Article 92 to say that the effect of non-ratification by a contracting party only prevents that contracting party from being benefited by the convention, but that the convention is binding on it even without its own ratification, provided the least number of instruments of ratification are deposited as required by Article 92.
I, therefore, cannot accept the Prosecution contention that, as Japan was a signatory to the Geneva convention and as the Geneva convention has been otherwise effective within the meaning of Article 92, it has been binding on Japan though, because of non-ratification by her, it has not become effective FOR her benefit. In my opinion, the convention as such has not become effective either for or against Japan.
The Prosecution next contends that the convention did not lay down any new law or rule of war but only enacted what was already the recognized rule of warfare. I am afraid I find some difficulty in accepting this view.
Articles 91-96 would go against this contention. Article 96 reserves for each of the high contracting parties the right to denounce the present convention. The high contracting parties seem to have understood that they were entering into an agreement in respect of the subject matter of the convention and that thereby they were creating new legal relations between them in respect of the matter dealt with in the convention.
The correspondence relied on by the Prosecution does not, in my opinion, make the Geneva convention applicable to the case.
At the beginning of the Pacific War, the allied powers enquired of Japan whether or not she would apply the Geneva convention. Exhibit 1,468, dated
December 18, 1941, is the U. S. note in this respect and Exhibit 1,494, dated January 3, 1942, is the U. K. note on the same subject.
The Japanese Foreign Office requested the opinion of the War Ministry and obtained the following reply:
‘In view of the fact that the Geneva Convention relating to POW’s was not ratified by His Majesty, we can hardly announce our observance of the same, but it would be safe to notify the world that we have no objection to acting in accordance in the treatment of POWs.
“The 1929 Geneva Convention, relating to POW ’ s, has no binding power whatsoever on Japan. But this Ministry has no objection to applying the principles of the Convention to noncombatant internees within such limits as it is applicable, provided, however, that no person be subjected to labour against his will. ” (Exh. 1,958)
After these deliberations, the following reply was made to the United Kingdom on January 29, 1942:
“The Imperial Government has not yet ratified the Convention relative to treatment of POW’s, of 27 July 1929, It is, therefore, not bound by the said convention. However, it will apply mutatis mutandis provisions of the said Convention to English, Canadian, Australian and New Zealand POW’s in its hands. ”
“As to provisions of food and clothing for POW ’ s, it will consider on conditions of reciprocity, the national and racial customs of the prisoners. ” (Exh. 1,956)
Similar reply was given to America also on February 4, 1942- The reply stood thus:
“Japan is strictly observing Geneva Red Cross Convention as a signatory state. Second, although not bound by the Convention relative to treatment of POW s, Japan will apply mutatis mutandis provisions of that Convention to American POW’s in its power. ”
Witness MATSUMOTO, who handled the discussion between the Foreign Office and the War Ministry, explained to the Tribunal what they meant by the expression “mutatis mutandis”. It was the intention of Japan with respect to treatment of POW s that the stipulations of the Geneva convention shall be applied so far as circumstances permitted. He was referring to two kinds of difficulties;
1. The Japanese domestic law, peace law, army and navy penal code and court-martial law, which were in some respects not compatible with the Geneva Convention.
2. The difficulties Japan would face due to the vastness of the area of East Asia.
The prosecution rightly contends that the Hague Convention was ratified by Japan. That convention, however, contains a provision in its Article 2 that “the Provisions contained in the Regulations .... do not apply except between contracting powers, and then only if all the belligerents are parties to the Convention”.
Neither Italy nor Bulgaria had ratified the 1907 Convention.
In my opinion, therefore, neither the provisions of the Hague Convention of 1907 nor those of the Geneva Convention of 1929 shall apply to this case.
This, of course, does not mean that the fate of the prisoners of war was absolutely at the mercy of the Japanese. All that I find here is that those conventions, as conventions, would not apply to this case.
Before proceeding further with the matter I would like to notice two very pertinent factors which had tremendous effects on the events that happened. One is the fundamental difference between the Japanese and the Western view of surrender,—the “shame” or the “honour” of surrender. And the other is the overwhelmingly large number of surrenders which Japan had to face during the Pacific War. The latter was almost as unexpected as the atom bomb. If the atom bomb has come “to force a more fundamental searching of the legitimate means for the pursuit of military objectives,” these overwhelmingly large numbers of surrenders have equally come to force a more fundamental searching of the extent of the victors’ obligations to give quarters to the surrendering army.
An army of 100,000 surrendering to an army of 34,000 creates a very grave problem for the small victor army. In these days of total war with such technique of war involving possibilities of sudden surrenders like this, many of the provisions of the existing conventions may require fundamental modifications. We should not forget that whenever any of the laws of war have been found to be a definite and permanent obstacle to the achievement of the objectives of war, the sanction of common interest and the reason for the continuance of the rule has disappeared and the rule has not been observed.
Pending a more perfect world organization and union shown to be capable of preventing wars, if the laws of war cannot RULE OUT any means effective to secure the ends of war, these cannot equally RULE IN anything which may prove highly obstructive to the achievement of its objectives. If the countries having the atom bomb can expect to keep the technique of the atom bomb secret, it would hardly be reasonable to expect them to forego this advantage any more than it would be to expect them to make public any other plan of military defense and the military advantage derived from superior research or administrative organization. The frightful efficiency of the bomb, in spite of the consequent indisriminate destruction of civilian life and property, offers an advantage, which, we are told, would not be foregone simply on the sentimental humanitarian objections. The incidental civilian loss and suffering, we are told, is also of military advantage in that it weakens the enemy’s morale. If this is so, we are also to think over the situation that is created by surrender in overwhelming numbers, specially when the policy of one party is fighting to death and of the other is avoidance of facing hopeless odds.
I have noticed above the Japanese policy of surrender. It is not a policy of the conspiratorial group; it is a policy coeval with Japanese national life. It went a great way in moulding the mental make-up of the Japanese soldiers and was largely responsible for many of the happenings with which we are now concerned. Of course this would not, in any way, justify their misdeeds,
and, I am sure, this has not been allowed to justify their conduct by the victor nations in their trial for such misdeeds. We are, however, not considering here the criminality or otherwise of those deeds. We are only considering how far, in the absence of any evidence of “order, authorization or permission” emanating from any of the accused before us, the mere general prevalence of such misdeeds in every theatre of war, would lead us to any inference of such order, authorization or permission.
It is no wonder that to the Japanese with the above mental make-up, the westerners, who became prisoners of war, were disgraced by the mere fact of surrender, “in Japanese eyes they have suffered ignominy and it was bitter to them that the Americans did not know it. Many of the orders which American prisoners had to obey, too, were those which had also been required of their Japanese keepers by their own Japanese officers; the forced marches and the close-packed trans-shipments were common place to them.”
“Open challenging of authority was terribly punished even if it were mere ‘answering back’. Japanese rules are very strict against a man’s answering back even in civilian life and their own army practices penalized it heavily. It is no exoneration of the atrocities and wanton cruelties that did occur in the prison camp to distinguish between these and those acts which were the consequences of cultural habituations.”
“. . . The shame of surrender was burned deeply into the consciousness of the Japanese. They accepted as a matter of course a behaviour which was alien to our conventions of warfare. And ours was just as alien to them. They spoke with shocked disparagement of American prisoners of war who asked to have their names reported to their government so that their families would know that they were alive. The rank and file, at least, were quite unprepared for the surrender of American troops at Bataan for they had assumed that they would fight it out the Japanese way. And they could not accept the fact that Americans have no shame in being prisoners of war. ”
One of the Japanese attitudes which had to do more specially with the Japanese army concerned “the expendability” of their fighting forces. “Americans thrilled to all rescue, all aid to those pressed to the wall. A valiant deed is all the more a hero’s act if he saves the damaged. Japanese valour repudiates such salvaging. Even the safety devices installed in our B-29’s and fighter planes raised their outcry of cowardice. . . .
There was virtue only in accepting life and death risks; precautions were unworthy. This attitude found expression in the case of the wounded and of malarial patients. Such soldiers were damaged goods and the medical services were utterly inadequate even for reasonable effectiveness of the fighting force. As time went on, supply difficulties of all kinds aggravated this lack of medical care, but that was not the whole story.
Japanese scorn of materialism played a part in it; her soldiers were taught that death itself was a victory of the spirit and our kind of care of the sick was an interference with heroism, —like safety devices in bombing planes. Nor are the Japanese used to such reliance on physicians and surgeons in civilian life as Americans are. Preoccupation with mercy toward the damaged rather than with other welfare measures is especially high in the United
States and is often commented on even by visitors from some European countries in peacetime. It is certainly alien to the Japanese.
At all events, during the war the Japanese army had no trained rescue teams to remove the wounded under fire and to give first aid; it had no medical system of front line, behind-the-lines and distant recuperative hospitals. Its attention to medical supplies was lamentable.
“If this attitude of the Japanese toward damaged goods was fundamental in their treatment of their own countrymen, it was equally important in their treatment of American prisoners of war. According to our standards the Japanese were guilty of atrocities to their own men as well as to their prisoners. The former chief medical officer of the Philippines, Colonel Harold W. Glattly, said after his three years internment as a prisoner of war on Formosa that the American prisoners got better medical treatment than the Japanese soldiers...”
This is what an anthropologist writes of the Japanese view of soldier’s life. This would not justify their inhuman behaviour towards prisoners of war and certainly was not accepted by the Allied Powers in exoneration of their atrocious conduct. But this would explain their conduct without ascribing the same to government policy. Whatever be the mental make-up of the Japanese soldiers and however much their conduct towards the prisoners of war might have been justifiable in their own eyes, they had to answer for all their brutalities and, as I have already pointed out, most of them have done so with their own lives. We are now concerned with a very different set of persons. Before we can make them responsible for these acts, we must see their connection with such acts well-established by the evidence before us.
For this purpose we must keep in view the following questions:
1. How far the evidence establishes the connection of any of the accused with any of these acts.
2.
(a) Whether the act in question can be said to be the act of state;or
(b) Whether it can be ascribed to any of the accused in his individual capacity.
3. If an act of state, whether the accused can be held criminally liable for it.
The Charter constituting the present Tribunal in its Article 6 enacts:
“Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires. ”
All that the Charter enacts is that the official position of the accused shall not of itself be sufficient to free such accused from responsibility of any crime.
The Charter does not say and certainly it is not the law that the accused must be held criminally responsible only because of his official position. Criminal responsibility must first of all be brought home to him, and then, if
the accused pleads his official position only in defense, the Charter purports to exclude such a plea.
The Nuremberg Charter in its Articles 7 and 8 made corresponding provisions . These Articles stood thus:
“Article 7. The official position of defendants, whether as heads of state or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment.
“Article 8. The fact that the defendant acted pursuant to order of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”
Though not so relevant for our present purposes we may notice the following two provisions having bearing on the plea of superior order.
British Manual of Military Law, Article 443 (Land Warfare) lays down:
“It is important, however, to note that the members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Government or by their commanders are not war criminals and cannot therefore be punished by the enemy"
The American rule was also the same up to 1944. Its rules of land warfare, Article 366 stood thus:
“Individuals of the armed forces will not be punished for these offenses in case they are committed under orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall. ”
I have stated above how the prosecution seeks to fix the criminal responsibility for the charges under consideration on the accused before us.
It would be convenient for the present purpose to divide the accused into the following four classes:.
1. Those of the accused who, as members of the government, had duties assigned to them in respect of the prisoners of war;
2. Those of the accused who were in command of armies, the personnel of which actually perpetrated the crimes;
3. The rest of the members of the government;
4. Those of the accused who held no position either in the Government or in the Army.