DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL

PART 6

3.    
(a) The Japanese Army in Manchuria with headquarters at Mukden under General Honjo had become dissatisfied with the Tanaka Policy of collaboration and negotiation with Chang Tso-lin.
(b)
(i) They did not want to wait on negotiations and were impatient to employ force to occupy Manchuria.
(ii) A clique or group of officers in this Army, which had completely isolated General Honjo and shut him off from communication with the affairs of the Army, planned and plotted the murder of Chang Tso-lin upon his return to Manchuria.
(iii) They arranged on June 4, 1928 that the train in which Chang Tso-lin was travelling from Peiping to Mukden should be wrecked by explosives placed on the track just outside Mukden.
(iv) Chang Tso-lin was killed in this wreck as planned.
(c) This incident represented the first overt army move to project itself into the formulation of the policies of the Government.
(d) The occurrence greatly embarassed and prejudiced the program of the Tanaka Cabinet with respect to Manchuria and created a crisis which ultimately resulted in its resignation on July 1, 1929.
4.           
(a) After the murder of Chang Tso-lin, the influence of the Army in so far as participation in the formulation of policy on the part of the Government with respect to Manchuria was concerned grew progressively stronger.
(b) The Army policy was that the Manchurian problems could never be solved short of the use of force to establish a Japanese puppet government there.
5.           
(a) In the early part of 1931, the witness received many reports that the Army was planning an occurrence which might be made the basis for the occupation of Manchuria.
(b) Simultaneously, Shumei OKAWA was conducting a propaganda campaign consisting of public speeches and publications to the end of building up a public sentiment in support of such a movement on the part of the Army.
(c) (i) WHEN IN 1932 the witness came into the Saito Cabinet as Minister of the Navy he learned that the occurrence which came to pass on the night of September 18, 1931, was plotted and arranged by THE CLIQUE in the Kwantung Army.
(ii) The witness is definite that Shumei OKAWA was identified with this movement on the part of the Kwantung Army at that time. There were many young officers in the Kwantung Army also involved. The witness did not recall the names.
6.  The Army during these years was completely out of control of the Government and no restraint could be placed upon it (By Army he means only some of the younger officers).
7.   After the occupation of Manchuria, the Kwantung Army was the real Government there, although the so-called independent government was set up in Manchuria in the early part of 1932 whose independence was supposedly recognized by Japan in September of that year.
In his second affidavit the witness said:
1.            Beginning around 1928, there was a general tendency in the Army to expand on the Continent of Asia.
2.           
(a) General Tanaka, the then Prime Minister, had completed a plan regarding the continent and sent a representative to Manchuria to obtain from Chang Tso-lin important railroad concessions for opening up new lines.
(b)
(i) This could be done only if a condition of peace prevailed in Manchuria.
(ii) In order to maintain peace, Tanaka felt that it was important that Chang Tso-lin should be kept in Manchuria and not in Peking.
(iii) Therefore, in order to prevent civil war in Southern Manchuria, Chang Tso-lin started for Mukden and on the way was killed by the blowing up of a railway bridge.
3.           
(a) Tanaka suspected the Kwantung Army and wanted to punish the culprits. As he failed, he resigned.
(b) The Kwantung Army proved by this event that it was more powerful than the Japanese Government in Tokyo.
4.            The power of the Army went on increasing until the AIZAWA Affair of 1935 proved how powerless the Prime Minister was: This time the witness, himself, was the Prime Minister.
5.            On February 26, 1936, a revolt of the Army took place. The witness’ cabinet resigned on account of this Army insurrection.
This affidavit is of earlier date.

The prosecution explanation of the two affidavits is that they were taken to represent two different phases of the case.

This affidavit, however, gives the same story though very vaguely here and very definitely in the other.

The witness in his cross-examination disclaimed any personal knowledge of what he stated about the murder of Chang Tso-lin. He stated that in 1932 while he was Navy Minister in the Cabinet of Admiral SAITO a full investigation of the matter was carried out and his knowledge was based on the information obtained during that investigation. The witness says:“l had this matter investigated as Navy Minister during the SAITO Government, and I am confident as to the accuracy of the result of that investigation.” When asked to state the basis of his findings the witness failed to give any, and stated “I am just speaking of these things only from my memory.”

It will appear from the above analysis that this witness did not name any particular officer as connected with the murder of Chang Tso-lin. He made no immediate investigation into the matter. He is giving us the result of his investigation held some four years after the incident. He cannot tell us the character of the materials disclosed to him by this investigation. What he says about the incident being the first overt army-move to project itself into the formulation of the policies of the government, is only his opinion. It is not any evidentiary fact which can help us in the formation of our conclusion.

Opinions, in so far as they may be founded on no evidence or illegal evidence, are worthless, and in so far as they may be founded on legal evidence tend to usurp the functions of the Tribunal whose province alone it is to draw conclusions of fact or law. Unless we are prepared to allow this usurpation and accept his own conclusions without troubling ourselves as to the character of the materials on which such conclusion might be based, this evidence must be rejected as worthless for our present purposes.

Next comes the witness TANAKA Ryukichi whose services were freely requisitioned by the prosecution to fill in all possible gaps in its evidence. Here is a man who seems to have been very much attractive to every wrong doer of Japan who after having committed the act, somehow and sometime sought out this man and confided to him his evil doings.

In Manchukuo, in 1935, Colonel Kawamoto told him all about his plan of and hand in the Chang Tso-lin murder and in that connection gave him every detail of his own policy regarding Manchuria.

Captain Ozaki met the witness in Tokyo in 1929, and told him that he had issued a mustering up order at the command of Colonel Kawamoto but that he was reprimanded by the Chief of Staff of the Kwantung Army, Saito.

Captain Cho in June 1932 told him in Shanghai that the purpose of the Sakura-kai was two-fold: one, to carry out an internal revolution or renovation, and, second, to settle the Manchurian Problem.

Captain Cho and Lt.-Col. Hashimoto (accused) told him that “the Manchurian incident was a planned incident” and that it was planned by the Chief of the Second Division of the Army General Staff, the then Major General Tatekawa, the leader of the Sakura-Kai, the then Lt. -Col. Hashimoto (accused), among civilians, a group under the leadership of Okawa Shumei (accused), the leaders in the Kwantung army, the then Col. Itagaki (accused), the Chief of Staff and Lt.-Col. Ishihare, the
Deputy Chief of Staff.

The then Lt. -Col. Hashimoto communicated these matters to the witness “at the Akebono-So Restaurant in Kojimachi Ward in Tokyo in the fall of 1934”. On that occasion Hashimoto also told him that he and Captain Cho planned the October incident that had failed.

Dr. Okawa had talked with the witness both before and after the Manchurian incident. In the summer of 1930 Okawa told the witness his plan about Manchuria and in November 1934, at Dr. Okawa’s house at Meguro, Tokyo, he told the witness that the Manchurian incident was a planned one. Dr. Okawa also confessed to him what part he took in propagandizing that Manchuria must be placed under Japanese control. Accused Itagaki told him in June 1930 that Manchuria should be placed under Japanese control by all means. After the Mukden incident also the witness had talked with Itagaki. Itagaki told him nothing about the plan but told him how and why two heavy guns had been set up in Mukden prior to that incident. Itagaki told him this “in the fall of 1935”. The witness was very careful in addressing Itagaki as “His Excellency, General Itagaki”, all through his testimony.

The witness had talked with Tatekawa also both before and after the Mukden incident. In 1929 Tatekawa told him that Manchuria should be placed under Japanese control. IN 1934 “His Excellency Tatekawa” told the witness that he “both expected and supported the Manchurian incident.” He further told the witness “that General Minami, War Minister had told him to stop the incident at all costs but that it was his (Tatekawa’s) own desire not to stop it. General Tatekawa further told the witness “that he had arrived in Mukden in the evening of September 18; that the Kwantung Army, thinking that he had come to stop the Incident had brought him to a restaurant in Mukden to isolate him.”

I need not multiply examples of such confessions to the witness. It will not be an exaggeration to say that his entire testimony is practically based on knowledge thus obtained. I shall have occasion to refer to such statements from time to time almost in every phase of this case.

I must confess I was not favourably impressed with this witness, and it will not be possible for me to accept his statement that the plotters of the Chang Tso-lin murder, of the Mukden Incident, of the other sinister incidents of the period, all came to him and confessed their heinous acts. His evidence is that Captain OZAKI after executing the plan told him in 1929 what he had done and further disclosed that what he had done, he had done at the command of Colonel KAWAMOTO. This Colonel KAWAMOTO also found out the witness in 1935, some seven years after the incident to tell him that it was he who planned the murder of Chang Tso-lin. 1935 seems to be a safe date; for, otherwise one might ask why TANAKA Ryukichi who seems to be so ready voluntarily to give out the truth now, was not so minded when the Lytton Commission was holding its enquiry. The other source of this witness’ s knowledge became available to him in 1942 when he was Chief of the Military Service Bureau and when the war office was being moved from Miyakezaka to Ichigaya. Amongst the papers he found, obviously accidentally, a report prepared in August 1928, by Major General Mine, Chief of the Tokyo M. P. Unit. This report, of course, could not be produced before us. Baron OKA- DA certainly had no knowledge of this report. At least he never spoke about any such thing. 

Perhaps in order to impress upon the Tribunal that this witness would know many things in course of his official duties, it was brought out from him by the Prosecution just at the commencement of his examination-in-chief that in the course of his official duties he had had occasion to make many investigations as to criminal actions on the part of army personnel and that in course of such investigations he had access to and custody of various documents as well as reports of the Japanese Military Police. He became Chief of the “Military Service and Discipline Bureau” of the War Ministry in 1940. Being asked whether the Bureau had had anything to do with investigations, the witness answered that one of the principal duties of the Bureau was to control and supervise morale and morals of the entire army. The witness also said that as Chief of that Bureau he had custody and control of the prior records of investigations made and filed with that Bureau. Then comes the story of the official investigation of the killing of Chang Tso-lin. But, it must be remembered, he had nothing to do with this investigation, which, according to his testimony, had taken place prior to August 1928. The official record and the report was, according to him, in the Bureau Record room. He came across the same, not in course of any other investigation, but purely casually and accidentally when “clearing up of various documents was conducted” at the removal of the office from one place to another in January 1942.

According to the witness (Tanaka Ryukichi) this official report was prepared by Major General Mine of the Tokyo Military Police at the order of the then War Minister and was made in August 1928. YOSHINORI Shirakawa was the then War Minister. We do not know where is this War Minister now. Baron Okada was the Navy Minister in that Cabinet. He has been examined by the Prosecution in this case and the Prosecution took two affidavits from him to be presented to us in evidence. In neither of them there is even the slightest suggestion about this report, though he spoke of an investigation held by him while he again came in as Navy Minister in the Saito Cabinet some four years after this incident. The War Ministers in the next cabinet, Generals Ugaki and Abe were examined by the Prosecution in this case. Even they were not asked a single word about this report.

According to this witness the report stated that the killing of Chang Tso-lin was planned by Senior Staff Officer, Kwantung Army, Colonel Kawamoto. The report, according to the witness, purported to say: “ This incident had no connection whatsoever with the Commander-in-Chief of the Kwantung Army at the time. The Kwantung Army, in accordance with the policy of the TANAKA Cabinet to secure an early settlement of Manchurian problems, endeavoured to disarm Chinese troops retreating from Mukden in the direction of Peiping and Tsientsin, in the direction of Kinshu, or Chinchow. The purpose was to get rid of Marshal Chang Tso-lin and to set up a new state separated from the Nanking Government with Chang Hsueh-liang as leader. However, this plan was banned by the TANAKA Cabinet later.

However, Colonel KAWAMOTO, still true to his own purpose of setting up an area of peace and order in Manchuria, endeavoured to get rid of Chang Tso-lin and set up Chang Hsueh-liang in his place ...” The dynamiting to blow up the train was carried out by the officers of the 20th Engineer Regiment which had come to Mukden from Korea. “At this time Captain UZAKI, Staff Officer of Colonel KAWAMOTO tried to return the fire which was opened by the personal bodyguards of Chang Tso-lin. At that time the plan was an immediate mustering of the forces but this mustering of the forces— Kwantung Army forces—was stopped by Chief of Staff of the Kwantung Army, Lieutenant General SAITO. ...”

The report, we are told, is not now available. We do not know on what materials it might have been based, if there was any such report at all. If based on any legal evidence why should we not be given that evidence so as to see if we can come to the same conclusion. If not based on any legal evidence, it is absolutely worthless as a piece of evidence in our case.

The report, we are told, said something about the policy having been banned by the Tanaka Cabinet. Why could not the Prosecution get anything about this from its witness Okada who was a member of that Cabinet?

In another part, General Saito, the then Chief of Staff of the Kwantung Army, is named. This General Saito could have been examined by the Prosecution.
As usual, Colonel Kawamoto himself, according to this witness, confessed to him in Manchukuo in 1935. The Colonel was still alive when Tanaka was being examined and according to Tanaka, was in Taiyuan, Shansi Province, China. We are not told why he could not be produced before us by the Prosecution.
Apparently he was under the allied control. Even Tanaka says that Colonel Kawamoto told him that “it was a plan of his alone”.

It may be noticed in this connection that though this witness gave evidence in Japanese his examination-in-chief took place in court. Perhaps this was so, because even the Prosecution could not anticipate how often and on which matters his evidence would be required. The defense, of course, could not have anticipated what the witness would say on any particular topic.

I shall come back to this evidence while considering the Mukden incident and shall show that it has not even the slightest guarantee of trustworthiness.
I am afraid I am unable to base any reliance on such evidence of this witness. Of course, excepting connecting certain named officers of the Kwantung Army with the murder of Chang Tso-lin, the evidence, even of this witness, would not have carried us further.

The testimony of MORISHIMA is claimed by the prosecution as corroborating the above testimony. This witness was not yet at Mukden in June 1928 when the incident took place. His source of information is best disclosed in his deposition where he says: “The explosion incident concerning Chang Tso-lin was a very important matter for the Consul at Mukden. As a result after my arrival at Mukden, I heard from various very wide sources concerning this incident.” Then he says that at least two of his sources were exceedingly accurate. He heard from Captain TOMIYA who participated in this incident and from a very influential Chinese politician. I am afraid this evidence is no better than what we had from TANAKA Ryukichi.

In my opinion, the incident remains shrouded in mystery as before. At any rate it remains an isolated incident without any connection whatsoever with any program, plan, design or conspiracy with which we are concerned in this case.

I would now take up the Mukden Incident of September 18, 1931.

Coming to this incident the Lytton Commission concluded with the following observations:

“Tense feeling undoubtedly existed between the Japanese and Chinese military forces. The Japanese, as was explained to the Commission in evidence had a carefully prepared plan to meet the case of possible hostilities between themselves and the Chinese. On the night of September 18th-19th, this plan was put into operation with swiftness and precision. The Chinese, in accordance with the instructions referred to on page 69, had no plan of attacking the Japanese troops, or of endangering the lives or properties of Japanese nationals at this particular time or place. They made no concerted or authorized attack on the Japanese forces and were surprised by the Japanese attack and subsequent operations. An explosion undoubtedly occurred on or near the railroad between 10 and 10:30 p.m. on September 18th, but the damage, if any, to the railroad did not in fact prevent the punctual arrival of the southbound train from Changchun, and was not in itself sufficient to justify military action. The military operations of the Japanese troops during this night, which have been described above, cannot be regarded as measures of legitimate self-defense. In saying this, the Commission does not exclude the hypothesis that the officers on the spot may have thought they were acting in self-defense .”

The Chinese instructions referred to in the above extract were contained in a telegram from Marshal Chang Hsueh-liang dated the 6th September 1931 which was shown to the Commission at Peiping and of which the text was as follows:

“Our relations with Japan have become very delicate. We must be particularly cautious in our intercourse with them. No matter how they may challenge us, we must be extremely patient and never resort to force, so as to avoid any conflict whatever. You are instructed to issue, secretly and immediately, orders to all the officers, calling their attention to this point.”

The Lytton Commission seems to have attached some weight to the fact that the Japanese were better prepared than the Chinese when hostilities began on the night of September 18. The Prosecution also lays much stress on this fact. While such an appraisal of the relative preparedness at the time the incident took place may in general be of some value in determining the aggressor, it is of doubtful significance in the present case in view of its special circumstances. Remembering the tense situation and high feeling preceding the incident, and keeping in view the relative military strength of the parties in the locality, this preparedness on the part of Japan is nothing unusual and may indicate nothing beyond efficient farsightedness and vigilance on the part of the army authorities. Of course the relative efficiency of the combatants after the commencement of the hostilities would not have much bearing on the present question. Military efficiency may exhibit some correlation with aggressiveness, but it is at least doubtful whether such correlation is sufficient to justify the conclusion that the more efficient and vigilant belligerent is invariably to be branded as the aggressor.

That there was sufficient cause for apprehension of sudden outbreak of hostilities is amply indicated even in the telegram of the Chinese Marshal referred to above. The Chinese side might have taken the precaution of the character indicated in the instructions conveyed in the telegram. But it is not the case of the prosecution that this instruction was the result of any mutual understanding of the parties; and there is no reason why the Japanese authorities might not have bona fide considered preparedness and vigilance to be the wiser course dictated by the gravity of the situation created by the then existing anti-Japanese feeling.

Further, if we are to build on this apparent military preparedness of the Japanese side, we must not ignore any possible preparedness on the Chinese side in some other respects. Preparedness, after all, depends upon what the party may be preparing for. The Chinese side might have been conscious of their relative weakness in military strength and therefore instead of counting upon their own military resources, might have counted upon international intervention for the solution of their Japanese difficulties in Manchuria. They might not have been inadequately prepared for securing such international intervention.

The slightness of the damage rather goes against the theory of Japanese plotting and is more in keeping with its having been planned by the party which might have been preparing for third party decision. If Japan would plot the incident, she would do so only to create for the world a justification for her subsequent action. The Japanese plotters certainly could be credited with this amount of sense that they would realize that the world opinion in this respect would largely depend upon the magnitude of the damage caused. They themselves being the plotters and there being no possibility of their suddenly facing any obstruction from any quarters, they might be expected to have done the destruction more nicely. As it is now revealed in evidence, the execution of the plan, whosesoever plan it might have been, was done rather hurriedly and stealthily. As executed, the plan seems to be more consistent with the theory of its having been hatched for the purpose of driving some excited group to rash action, and then, on the strength of such action, seeking redress from international organization.

I am saying this only to show the difficulty in drawing any conclusion against Japan from the mere circumstance of her relative preparedness. If military preparedness point to any hypothesis at all, here is another hypothesis, perhaps not less rational; and unless this could be excluded, any conclusion based on the hypothesis based on the relative preparedness would be defective.

This hypothesis is not in any way less rational than the other. If Japan entertained a strong desire to expand in Manchuria, China also was not less desirous of excluding the Japanese altogether from that country and freeing Manchuria of every vestige of Japanese interest. If Japan was confident of her military strength and therefore might have designed realization of her desire by force, China too had reason to be confident of favourable international intervention and therefore, might have designed realization of her desire through such intervention. If subsequent military success of Japan can show retrospectantly that she was counting upon such achievements and was therefore, designing for the same, subsequent success of China in getting international decisions in her favour might have equally retrospectant significance. The incident itself with its insignificant character rather goes in favour of Japan as I indicated above.

No one would have accused the Chinese authorities of any miscalculation if they counted upon any favourable international intervention. The attitude of the other Powers of the World Power Politics towards Japan since the termination of the first World War might not have failed to produce some effect on Chinese mind in this respect. I have given elsewhere Japan ’ s position in international relations since that war. The Survey of International Affairs for 1920-23 states how the statesmanship and the diplomacy of English speaking powers “step by step maneuvered” Japan out of what had seemed her impregnable positions. “Adroitly and differentially she was induced to play a distinguished part in undoing the work of her own hands”. China too had occasion to participate in this maneuver. “The refusal of the Chinese Government to sign the Versailles Treaty was given significance by the refusal of the United States Congress to ratify it.”

I am mentioning this at this stage not to say which side was right and which wrong. I am simply pointing out, in support of the hypothesis advancd by the Japanese that the Mukden incident was engineered by the Chinese, that even by the absence of military preparedness on the part of China the hypothesis is not altogether excluded.
As regards the ultimate decision which China succeeded in obtaining in her favour in this respect, third party critics were not wanting who viewed the decision of the League as calculated to give rise to “the feeling that Europe did not care a straw about Japan’s special difficulties or about the essential merits of the dispute.” Some even considered the decision to have been provoked only by “annoyance because Japan had upset Geneva’s apple cart’.

I am not, in the least, justifying these observations. On the contrary, I would most emphatically condemn such views. But we are now only on a question of hypothesis.
The prosecution adduced some additional evidence to supplement the Lytton Report.

In its summation, at pages from D19 to 139, the prosecution ably and lucidly presented the reconstructed picture of the alleged conspiratorial events forming parts of the conspiracy charged in Count 1, and, leading to the Mukden incident. The salient features of this picture should be observed with care and caution.

The following features in this picture as depicted by the Prosecution would demand our special attention:

1.            Murder of Chang Tso-lin was “the first precipitate attempt to obtain forcible possession of Manchuria” .
(a) The attempt failed.
(b) (i) This failure resulted in another failure of the conspiracy by bringing about the “downfall of the TANAKA Cabinet and the abandonment of the TANAKA policy of obtaining Japan’ s desires in Manchuria” though “by peaceful means”.
(ii) The accession of the HAMAGUCHI and the WAKATSU- KI Cabinets on the failure of the TANAKA Cabinet meant revival of the friendship policy.
2.            The conspirators were (l) the Army in Japan, (2) the Kwantung Army and (3) Civilians.
(a)          The following were named by the Prosecution as the then conspirators:
(i) In the General Staff, General Tatekawa, who was the leader there.
(ii) The Lt. -Colonels and Majors who in October 1930 were in the War Office, the General Staff and the Office of the Inspector General of Military Education and who organized the Sakura-Kai.
(iii) Accused Hashimoto under whose leadership the Sakura- Kai was organized.
(iv) Lt.-Colonels Sakata, Nemoto, Hashimoto, Tanaka, and Captains Cho and Tanaka, who in January 1931 drafted a concrete plan.
(v) Accused Minami and Koiso : Minami ’ s character as a conspirator became known when he on July 1, 1931, as War Minister, discussed Manchurian-Mongolian
pProblems with officials of the South Manchurian Railway: the sinister statement of Minami which revealed himself as a conspirator was “that the army had long recognized the need for increasing its divisions in Korea and that he hoped the day would come when more divisions would be sent.” The other sinister speech revealing his character was the one made by him on August 4, 1931, to the division commanders in which he stated that Manchuria and Mongolia were closely related to Japan’s national defense as well as to her politics and economics.
(vi) Itagaki (accused), Ishihara and Hanaya, all staff officers of the Kwantung Army—who became definitely identified with the leadership of the group in the Kwantung Army desiring to take over Manchuria.
(vii) Dr. Okawa Shumei, who had previously written two books in which he had preached the doctrine that it was unavoidable to have a ‘deathly’ fight between the Powers of the East and of the West and that Providence was trying to elect Japan as the champion of Asia, and who was now plotting and carrying on propaganda for purposes of realizing the object of the conspiracy.
(viii) Koiso, Itagaki, Dohihara, Tada and others, who became intimately acquainted with Dr. Okawa.
(ix) Ninomiya, Deputy Chief of Staff, Shimizu, a henchman of Okawa; Sugiyama, Nagata, Ikeda, Shigeto and Cho.
(x) General Miyake, Chief of Staff of the Kwantung Army.
(xi) Colonel Kawamoto and Captain Ozaki of the Kwantung Army.
(xii) Lt. Kawakami stationed at Fushun.
3,           
(a) The conspirators, despite the above failures, did not abandon their project: “They used the next two years to plot, plan and agitate for the next step in their conspiracy.
(b)          “The plotting and planning
(i) followed so closely upon the murder of Chang Tso-lin, and
(ii) involved so many of the same people who were later involved in the Mukden Incident” that the conclusion is inescapable that all the activity during the period from the murder of Chang Tso-lin until Mukden Incident was all part of one conspiracy.
(c)           “The activity from 1929 on, involving many of the same persons as were involved in the Mukden Affair, including some of the present accused, was definitely part of the conspiracy charged and had as its purpose the furtherance of that conspiracy.”
4.            The conspiracy was conceived of, planned and advanced since 1929 in the following manner:
(a)          In 1929 while serving in Peiping General TATEKAWA conceived that Manchuria should be placed under Japanese control and made into a state self-sustaining except for oil.
(b)          (i) He communicated this to TANAKA Ryukichi and sent him to Manchuria to investigate.
(ii) TANAKA reported that this plan was not feasible.
(iii) Undaunted by this report, Tatekawa expressed his determination that efforts should be made to make Manchuria self-sustaining and that for this purpose Manchuria was to be seized by Japan.
(iv) In April 1929 at a conference of the chiefs of staff a plan for establishing self-sufficiency in Manchuria was
distributed to the chiefs of staff to impress upon them the fact that Manchuria was Japan’s life line.

In 1929 the investigation section of the Kwantung Army was found insufficient to probe into the resources of Manchuria.
In an effort to enlarge the China and Manchuria investigation section of the War Ministry, the general investigation section was created on April 1, 1930.

In October 1930, “the Sakura-Kai” was organized.
The purpose of the society was national reorganization for the attainment of which the society was ready to use armed force: One purpose of the organization was TO SETTLE THE MANCHURIAN PROBLEM.

“In January 1931, work had begun on the drafting of a concrete plan.”

On July 1, 1931, War Minister MINAMI and the War Ministry were favouring military action in Manchuria.

On August 4, 1931, MINAMI in a speech to the division commanders expressed his hope that in view of the situation in China, the commanders would carry out their duty of educating and training troops so that they could serve His Majesty’s cause to perfection.

MINAMI was thus putting the divisional commanders against the politicians in a political dispute.

In the Kwantung Army, from the fall of the Tanaka Cabinet until late summer of 1931 the influence of the group desiring to take over Manchuria increased.
Itagaki, Ishihara and Hanaya, all staff officers of the Kwantung Army, became definitely identified with the leadership of this group.

They felt that the use of armed forces was necessary to preserve Japan’s interests and they wanted to occupy Manchuria and establish a government separate from China.

This determination to use force became progressively stronger throughout the summer of 1931 and it was evident by the end of summer that it was only a matter of days until the Army would move in Manchuria.

While the army was busily preparing for its move into Manchuria, Dr. Okawa Shumei was plotting and carrying on propaganda for purposes of realizing the object of the conspiracy. The propaganda stressed Japan s particular position in Manchuria.

“Through co-operation with the Kwantung Army Okawa had done his best to further background operations.”

(ai) This co-operation between Okawa and the Japanese Army shows CLEARLY that their aim was not limited to obtaining Manchuria.
(b) As early as 1924 Okawa had openly espoused the ideas of Sato Shines who had advocated world conquest.
(c)         
(i) Internally, there was still one serious obstacle to the easy accomplishment of the conspiracy—the duly established government of Japan.
(ii) The Hamaguchi Cabinet was in power. Even more important, due to attempted assassination of Hamaguchi, Foreign Minister Shidehara, the hated exponent of the ‘Friendship Policy’ was acting Premier.

(iii) The conspirators conceived of and proceeded to execute a plan for seizing the government.
(iv) This effort became known as the March Incident.
Amongst others Tatekawa and Koiso were among the plotters of this incident.
(v) The Manchurian incident was the motive for the March incident.

(i)            Though the plot relating to the March incident became abortive, the movement to take over Manchuria continued with increasing vigour.
(ii) Rumours and information about a plot on the part of the military officers In Manchuria began to reach Tokyo.
(iii) Shortly prior to the outbreak of the Mukden incident, the tension increased and there were reports of imminent action in Manchuria.
(iv) On September 15 or 16, 1931, Shidehara received a cable reporting that the Commander of a patrol unit had stated that within a week a big incident would break out and Shidehara protested to Minami.
(v) Minami immediately sent Tatekawa as a special emissary to Mukden to stop the action at all costs.
(vi) Tetekawa reached Mukden on the 18th September.— General Miyake, the chief of staff of the Kwantung Army sent Itagaki to meet Tatekawa. The two met; but Tatekawa did not deliver the message.
5.            The incident took place that very night and gradually spread leading to the occupation of Manchuria.
6.            In October the conspirators dissatisfied with the Government’s policy and regarding it as the one obstacle to carrying out the conspiracy, again planned to seize the control of the government. This move became known as the October Incident.
(a)          On December 10, 1931 the WAKATSUKI Cabinet resigned, failing to bring the spread of the Manchurian Incident under control;

This is apparently formidable array of sinister events. Let us see which of them can be accepted as established by evidence in this case and what is their probative relation to each other and to the over-all conspiracy alleged in this case.

I can at once say that the following have been established to the extent indicated below:

1. The factum of the murder of Chang Tso-lin has been established,
2. The downfall of the TANAKA Cabinet and the accession of the HAMAGUCHI and the WAKATSUKI Cabinets in succession have been established,
3.            The establishment of the General Investigation Section of the War Ministry on April 1, 1930.
4.            The organization in October 1930 of the Sakura-Kai (Exh. 183, R.P. 2,189).
5.            (a) Admittedly on July 1, 1931 War Minister MINAMI stated that the Army had long recognized the need for increasing its divisions IN KOREA and that he hoped the day would come when more divisions would be sent (Exh. 2, 202“ A, R.P. 15,752).

(b) On August 4, 1931, MINAMI made a speech to the division commanders in which he stated that Manchuria and Mongolia were closely related to Japan’s national defense as well as to her politics and economics, and that it was to be regretted that the situation in China was following a trend unfavourable to Japan. He then stated that he hoped that in view of this the commanders would carry out their duty of educating and training troops so that they could serve His Majesty’s cause to perfection (Exh. 186, R. P. 2,209).
6. 
( a) Dr. OKAWA Shumei had written two books in which he had preached the doctrine that it was unavoidable to have a “deathly” fight between the powers of the East and of the West and that the Providence was trying to elect Japan as the champion of Asia. (Exh. 2, 179-A, R.P. 15,605-09; Exh. 2,180-A, R.P. 15,610-11).
(b) Dr. OKAWA espoused the ideas of SATO Shinen who some two hundred years ago advocated that Japan should first absorb China, then obtain the whole South Sea area so as to prepare for the Northward advance in England and then obtain control of India and Indian Ocean. (Exh. 2,183-A, R.P. 15,632-33).
7.            The HAMAGUCHI and the WAKATSUKI Cabinets followed the friendship policy.
8.            The plot which was known as the March Incident was organized and in it accused HASHIMOTO did participate. 
9.           
(a) TATEKAWA was sent as a special emissary to Mukden to stop the rumoured incident.
(b)          TATEKAWA reached Mukden before the incident, met ITA- GAKI but did not communicate to him his special message and did not do anything towards preventing any possible incident.
10.          That the incident took place during that very night.
11.          That the October incident was planned.

I have already considered the incident resulting in the murder of Chang Tso-lin and have pointed out that it had absolutely no connection with the alleged conspiracy, and that the tragedy still remains shrouded in mystery.

As regards the TANAKA Cabinet, the prosecution started by saying that its policy was an aggressive one. The Prosecution asserted that “during the period from April 1927 to July 1929, under the Ministry of Prime Minister Tanaka, Japan followed the Positive Policy which rested upon military force with respect to Manchuria.

"But coming to the incident of Chang Tso-lin ’ s murder the Prosecution told us that “it was the policy of the Tanaka Cabinet to expand and develop Japanese rights in Manchuria to the fullest extent by collaborating with, aiding and using Chang Tso-lin”. —“it was the policy of Tanaka to advance PEACEFULLY into Manchuria and then by degrees into China.” This change in the characterization of Tanaka policy became necessary in order to introduce the theory of dissatisfaction and disagreement of the Army with that Policy. I shall come to this presently.

But whatever might have been the Tanaka Policy, there is nothing reliable on the record to substantiate the Prosecution case that the army or any group of army officers was dissatisfied with this policy and planned in any way to get rid of this policy and to bring in a Cabinet with a more favourable policy. I have discussed this matter while considering Chang’s murder. In my judgment there is absolutely nothing on the record in any way to connect the murder of Chang Tso-lin or the consequent fall of the Tanaka Cabinet with any design, plan or conspiracy even to occupy Manchuria, not to speak of the whole of China or the whole world. The prosecution assertion that this murder was the “ first precipitate attempt to obtain forcible possession of Manchuria” is absolutely without any foundation. There is nothing even to show that the designers or the plotters of the murder also designed, plotted or planned, or even contemplated the elimination of the Tanaka policy or the Tanaka Cabinet.

Coming to the list of the alleged conspirators built up by the Presecution, we find the same difficulty. The evidence does not bear even a cursory scrutiny and it is difficult to believe that any one could have founded this reconstruction on any genuine belief uninfluenced by any strong desire.

The material for the reconstruction of the list of conspirators is mainly supplied by the testimony of Tanaka Ryukichi. This witness again, as usual with him, derives his knowledge entirely from the voluntary confessions of the alleged conspirators. 

Captain Uzaki in 1929 and Col. Kawamoto in 1935 confessed to him as to their connection with the Chang Tso-lin murder incident. The now lost report of General Mine helped this witness in 1942 to discern the object of this murder and to connect it with the conspiracy charged in this case. But long before this, in 1935, he got this also from Kawamoto. The report named Col. Kawamoto and “ ten some odd others ” as the conspirators. Col. Kawamoto claimed the plan to be “of his own alone.”

I have already stated why I cannot believe this witness. But apart from the question what reliance we can place on the testimony of a witness of this type, let us see what value it is possible to attach to the supposed statement of Kawamoto alleged to have been made to the witness. Is there any guarantee that this supposed statement would be trustworthy? Kawamoto was making this statement in 1935, when Manchukuo had already been established and had been a success. Kawamoto’s statement certainly was not a confession urged by any consciousness of guilt, as at that time no one was looking upon the Manchurian project as anything wrong or criminal. There does not seem to have been any pressure of conscience in any of these cases. On the other hand, the incident had produced a result which, at that time, could well be looked upon as a matter of gratification for the authors thereof. Kawamoto’s alleged statement, claiming the entire credit to himself and asserting how Manchukuo could have been long established had his plan been then followed to its full extent, smacks of bragging. The whole statement might thus have been the result of this bragging and absolutely false.

Captain Uzaki, of course, could not give any “purpose for the killing of the Marshal”.

As regards the alleged report of General Mine, we do not know who else was named in it. The expression “ten some odd others” in the testimony of Tanaka does not help us in this respect. Further we do not know on what materials General Mine’s conclusions in this respect were based.

Perhaps a word of warning is needed here. It may easily appear as if the Report and Kawamoto’s alleged statement are corroborating each other. This might be so, if we could accept that the alleged statement of Kawamoto to the witness was truly made and that the contents of the report as given by the witness was truly there. But this does not in the least remove or diminish the difficulty that we are feeling in accepting the hearsay testimony of this witness.

The witness in course of his testimony, says that there was no advocacy of an independent state in Manchuria in 1930-31. But “when the situation had reached such a state that diplomatic negotiations were of no avail, it was the stand of members of the army that armed forces should be resorted to in driving out the Chinese forces from Manchuria and to set up a new regime under Japanese control, a regime of peace and order.”

He named the then Major General Tatekawa, who at that time was Chief of the Second Division, General Staff as ‘one of the very strong advocates of the above view’—he also named Dr. Okawa Shumei, as another advocate of the view. As to the other advocates of the view the witness said: “Others advocating this strongly in 1930 and the spring of 1931 was my friend Hashimoto Kingoro, and Captain Cho Isamu, who was a member of the Sakura-Kai”. He then “recalled” “that it was Colonel Itagaki, Chief of Staff, Kwantung Army, and Staff Officer Lt.-Col. Ishihara” were also the leaders of this policy.

Of course in naming these persons the witness did not mention any conspiracy, design, plan, agreement or combination among them. He simply said that they entertained the above view. From this evidence the prosecution chose to list them as conspirators. I do not see why the simple fact of entertaining a particular view should make them conspirators.

After saying that the Manchurian incident was a planned one, the witness named, as persons involved in this plan, General Tatekawa, Lt.-Col. Hashimoto, Captain Cho Isamu, and “a group under the leadership of Okawa Shumei”. The witness also named the then Col. Itagaki and Lt.-Col. Ishihara Kanji. His knowledge in this respect is derived from what Captain Cho and Lt.-Col. Hashimoto told him.

General Tatekawa also disclosed everything to this witness, of course, in 1934 and gave out the names of the other persons involved in the plan.

Tanaka’s knowledge in respect of this Mukden incident does not date before 1934. Each of the confessions he received in this respect, thus came to him after the Lytton investigation. This must be so; otherwise it becomes difficult to explain why such a lover of truth, who is now so much prompted only by his desire for giving out the truth, did not feel the same urge when that Commission was investigating the matter.

There might be another reason for this late date. These confessors had to confess all their doings so as to complete the chain of conspiracy. It might not look nice to claim that so many different persons approached this man repeatedly for repeated confessions.

I am not satisfied as to why these conspirators suddenly felt that urge for confession to this man at such distant dates from the incident. If their urge were caused by any feeling of self-gratification at the then success of the incident in Japan’s political and economic life, there comes in the possibility of bragging on their part and to that extent their supposed statements fail to satisfy the condition of any guarantee of trustworthiness.

Of course those of such confessors who could be produced before the tribunal, denied ever having made such statements to the witness.

The prosecution in its summation sought to strengthen the evidence of TANAKA Ryukichi by referring to the testimonies of SHIMIZU and FUJITA. The prosecution says:

“Other witnesses have also testified to contemporaneous statements made by some of the conspirators. In August 1931, OKAWA told SHIMIZU that Cols. KOMOTO and ITAGAKI would bring about an incident sometime later on. In August 1931, both SHIGETO and HASHIMOTO told the witness FUJITA that positive action should be taken in Manchuria. On September 19, when FUJITA, after reading about the Manchurian Incident, confronted SHIGETO with the statement that they had accomplished what they were contemplating in Manchuria, SHIGETO answered affirmatively. When he asked on the same day a similar question of HASHIMOTO, the latter replied that things had come to pass as they should.”

According to prosecution “the testimony of TANAKA and others about the statements made by the conspirators in the course of the conspiracy with respect to their relations to the plan and its execution is corroborative of and is corroborated by other vital evidence which fully reveals that the incident was no minor, unexpected clash, but a bold overt move to seize Manchuria.”

The most corroborative evidence relied on by the prosecution in this respect is TATEKAWA’s conduct during his mission to Mukden to stop the incident. Before coming to this conduct let us see what we get from SHIMIZU and FUJITA.

The evidence of SHIMIZU is exhibit 15 7 in this case. The witness spoke about the March Incident and his association with Dr. OKAWA in that connection. After this the witness in his affidavit stated thus: “After the failure of the aforesaid March Incident I continued to see the aforesaid Dr. OKAWA from time to time at the Kinryutei Inn. One of these occasions in August when the aforesaid Dr. OKAWA was drunk with sake he told me that he and a certain Colonel KOMOTO Daisaku and a certain Colonel AMAKASU of the Kempeitai, together with Colonel ITAGAKI, Vice-Chief of Staff of the Kwantung Army, would bring about an incident in Mukden sometime later on. After the occurrence of Manchurian Incident in September, I was arrested and spent three months in jail.”

This would suggest as if the witness had something to do with Mukden Incident but in his cross examination the witness said that his arrest and imprisonment after the Mukden Incident had nothing to do with that incident. If so, it is difficult to see why such misleading statement was taken in the affidavit at all.

It looks like catching at a straw in utter despair when we are called upon to rely on the aforesaid hearsay statement of this witness of what he got from OKAWA when he was drunk with sake. I have elsewhere referred to a prosecution document which evidenced Dr. OKAWA * s testimony given in the Tokyo Court of Appeal in 1934 in which he gave clear indication of his belief that the Mukden Incident started with a genuine case of destruction of the railway line by the Chinese. At least he did not ascribe that matter to any plotting on the part of the Japanese. SHIMIZU in his evidence emphasized that the import of the March plot was purely domestic.

FUJITA’s evidence is exhibit 160 in this case. After the incident of 18 September he met HASHIMOTO when the latter was very busy. Yet later on HASHIMOTO went to the witness’ s house, it seems, only to be questioned by the witness about the incident, to satisfy the witness by admitting his connection with the plot and then leave him saying “I am busy”.

I would examine the corroborative conduct of TATEKAWA later on. 

Accused MIN AMI is named as a conspirator on the strength of the evidence relating to his statements of 1 July 1931 and 4 August 1931. I must confess, I could not discover any such serious thing in these statements. Exhibit 184 is a letter written to MINAMI on 6 August 1931 by certain members of the Citizen’s Disarmament League wherein these members ascribed certain intention to these statements of MINAMI. I do not see how this is at all any evidence of that intention and how it is evidence of MINAMI ’ s being a conspirator. The prosecution, of course, relies on this for this purpose. An intention certainly Can be inferred from a person’s expressions. But it is beyond my comprehension how such an inference drawn by certain citizens is evidence of that intention.

Even accepting the entire evidence at its face value the worst that can be said is that some of them had been connected with the murder incident, some with the Mukden incident, some with the March incident and some with the October incident. But from this to name them as conspirators in relation to the conspiracy charged is really begging the whole question.

The prosecution invites us to connect all these incidents as parts of the conspiracy charged on two grounds:

1.            They followed closely upon each other.
2.            They involved so many of the same people.

As I have pointed out above I am not satisfied with the evidence on the strength of which the prosecution claims to have established that so many of the same people were involved in these incidents.

Even if these two propositions are accepted, I do not see why the conclusion becomes inescapable that “all the activity during the period was all part of the conspiracy”. Such a conclusion, far from being inescapable, is not at all possible unless the mind is prepared to take pleasure in straining them a little to force them to form parts of the connected whole.

Prosecution relied on Exh. 2, 177-A to connect the March incident with the Manchurian incident. This is a copy of the testimony of Dr. OKAWA given in September 1934 in the Tokyo Court of Appeal at trial for the May 15th incident of 1932. The prosecution, in its summation, says that in his testimony Dr. OKAWA stated “that the Manchurian Incident was the motive for the March incident.” The actual statement as evidenced by the exhibit, however, is somewhat different. The statement is:

“This Manchurian Problem was the important motive for the March incident.” In answer to a question, which, in part, was, ‘The military group reportedly believe     that enmity of America toward Japan, in the long runy may bring about a Japanese-American war and that if a Japanese American war is unavoidable, it would be held now. Is it so?” Dr. OKAWA said: “Yes. If a Japanese-American war is unavoidable, this war probably will be a protracted one. Since Japan will be confronted with the food and other economic difficulties, the Manchurian Problem should be settled before this. Therefore, the national life, we thought, should be reconstructed on an economic foundation made up of Japan and Manchuria as a unit to enable Japan to withstand a protracted war.” “This Manchurian Problem was the important motive for the March incident. . . "
.
So this is very different from “the Manchurian incident”. It should be remembered that this statement was being made in 1934, long after the Manchurian incident, and though the witness was confessing many things he never claimed the Mukden incident itself as a planned one. On the other hand he testified that on September 18, the destruction of the Manchurian Railway line at Lukow-chiao had occurred and with this as the beginning, the Manchurian incident began. The Japanese were able to take prompt action after the destruction of the Railway line because their mind was made up. I shall come back to this piece of evidence while considering the question of seizure of political power. For the present purpose I would only say that there is nothing in this document to connect the March incident with the Mukden incident and to characterize the Mukden incident itself as planned.

It would be of some importance to notice here that though Dr. OKAWA in his testimony as evidenced by this document named several other persons as connected with the several plots, planning and policies, he never mentioned TATEKAWA or KAWAMOTO.

But TATEKAWA is an essential link in the whole chain of the prosecution case relating to the Mukden incident.

The prosecution presents TATEKAWA’s conduct during his mission to Mukden to stop the incident as a vital evidence which is corroborative of the “testimony of TANAKA and others about the statements made by the conspirators in the course of the conspiracy with respect to their relation to the plan and its execution.”

On September 15 or 16, 1931, Baron SHIDEHARA received a cable reporting that the commander of a patrol unit had stated that within a week a big incident would break out in Manchuria. Baron SHIDEHARA communicated this to General MINAMI, the then War Minister. There is some dispute as to who selected TATEKAWA for the purpose. But let us assume for our present purposes that it was MINAMI who did so as the prosecution asserts. MINAMI immediately sent TATEKAWA as a special emissary to Mukden to stop the action at all costs. TATEKAWA was dressed in civilian clothes for this mission both in travelling and while in Mukden. He reached Mukden in the afternoon of the 18th September. ITAGAKI of the Kwantung Army met him toward evening and dined with TATEKAWA; and in course of the conversation, TATEKAWA said nothing except that he was tired from his trip. Admittedly TATEKAWA did not disclose his mission that evening and the incident took place during night. TATEKAWA had to come back without fulfilling his mission.

The prosecution says, “The pleasant chat between ITAGAKI and TATEKAWA with ITAGAKI skillfully preventing the discussion of any item touching on the subject was a mutual conspiracy to keep silent on the vital matter, since both were aware that the breaking of the silence might bring the entire project to a premature end.” Why? One may wonder! Both were conspirators. Both knew the project. Both desired that the project be executed. Only two conspirators were there. It is not suggested that there was any third person present. Unless the walls had ears how could the project be brought to a premature end if to their pleasant chat they added a word or two about the mission of TATEKAWA and enjoyed a hearty laugh over the same?

If we do not start with the assumption that TATEKAWA was in the conspiracy and knew that the project was to be accomplished that very night there was nothing extraordinary why he did not communicate anything to ITAGAKI that very evening. If his conduct is consistent with his being a conspirator, it is equally explicable without his being in the conspiracy. I, therefore, fail to see how this conduct corroborates the hearsay evidence of TANAKA Ryukichi already discussed above.

Acceptance of this conduct as a corroboration of hearsay evidence of the kind we got from TANAKA would, indeed, require a very strong measure of desire.
We have now before us the defense evidence on the point including the evidence of General MINAMI, one of the accused and the statement of General HONJO who left this statement before he committed suicide. We have also the deposition taken on commission of ISHIHARA, the then Staff officer of Kwantung Army. They all deny that the incident was planned by the Japanese. Even accepting the evidence of TANAKA and OKADA that the Mukden Incident of 18 September, 1931 was planned by some young officers of the Kwantung Army, I do not find any substantial evidence to connect any of the accused with that group or clique. The position in my opinion still remains as was found by the Lytton Commission. The incident might have been the result of a design on the part of some unknown army officers, yet those who acted on the strength of the incident might have acted quite bona fide.

The object of the alleged common plan is also mainly supplied by the testimony of TANAKA Ryukichi based on knowledge derived by the witness from the voluntary confessions of the conspirators themselves to him from time to time.

From the alleged report of the Major General MINE referred to above, the witness gets the following to be the object of Chang Tso-lin murder:

“The Kwantung Army, in accordance with the policy of the TANAKA Cabinet to secure an early settlement of Manchukuo problems, endeavoured to disarm Chinese troops retreating from Mukden in the direction of Peiping and Tsientsin, in the direction of Kinshu, or Chinchow. The purpose was to get rid of Marshal Chang Tso-lin and to set up a new state separated from the Nanking Government with Chang Hsueh-liang as leader; in other words, to create a new state under Japanese control, a state of peace and order which later became Manchukuo.”

“The purpose was to create a new regime of peace, law and tranquillity of the north by separating that area from the Nanking Government, and also by getting rid of the war lords whose influence prevailed in Manchuria. Separate from the Nanking Government, which was conducting a punitive expedition into Manchuria.”
From Colonel KAWAMOTO also, in 1935 the witness had the above object. Over and above that, KAWAMOTO told him “that if the urgent mustering up of the Kwantung Army had been carried out, then the Manchurian Incident would have been carried out then.”

The Colonel also told him “it (the murder) was a plan of his own alone.” The Colonel also said “that the purpose was to get rid of the war lords then prevailing in Manchuria and to create a new regime separated from the Nanking Government, a regime of peace and order under the leadership of Chang Hsueh-liang” .... and “that a new state must be set up in the area of Manchuria and separated from the Nanking Government to place that regime under Japanese control and leadership, and to develop the area within, and also to strengthen this new regime for purposes of Japanese national defense.”

From his own knowledge derived in his capacity as a member of the General Staff Office and while carrying on investigation on Manchurian Problems in 1930-31, the witness said “that there was no advocacy” by any elements in the Army, “of an independent state in Manchuria, but when the situation had reached such a state that diplomatic negotiations were of no avail, it was the stand of members of the army that armed force should be resorted to in driving out the Chinese forces from Manchuria and to set up a new regime under Japanese control, a regime of peace and order.

From Dr. OKAWA the witness got the following:

“By all means Manchuria must be separated from the Nanking Government, and place the new area under Japanese control; to create a land founded on the principle of the kingly way—a land of peace, law and order.”

Dr. OKAWA further said that “since the first part of the 17th Century Asia has been under constant western aggression by the white race, and that Asia is either colonial—has become a colonial area—or Asia’s territories has become either colonial or semi-colonial .... Outside of the people of Japan all
the people of Asia are now suppressed and oppressed people  After setting up an independent Manchuria a relationship—an inseparable relationship should be established between Japan and Manchuria, and that with the growth of Japan ’ s national strength, Japan as leader of the peoples of Asia endeavoured to drive out the white race from this area, to bring about the emancipation of Asiatic peoples, and also to bring about the revival of Asia.”

Dr. OKAWA further told the witness “that he had gone to Manchuria in the first part of 1930 to talk with Chang Hsueh-liang and had proposed this idea of his to the young Marshal. But Chang Hsueh-liang showed no desire whatsoever nor any agreement of OKAWA’s plan. That being the case, in the light of the fact that Sino-Japanese relations had been so aggravated at that time, .... the only way to bring about the fulfilment of that ideal was by force of arms.”

So, according to this statement, “the force of arm” idea came after this interview in 1930.

In 1934 Dr. OKAWA told the witness “that the independence of Manchuria, which he had as an ideal since his youth, was the first step in the emancipation of Asia.”
In the same year (1934) HASHIMOTO told the witness that “the Manchurian Incident was planned by the Kwantung Army and that he, in accordance with this plan, would assist and support the Incident and by that means endeavour to bring about a renovation of internal politics in Japan, which at that time was extremely corrupted. He also said that he and Captain CHO had planned the October Incident that had failed .... But he also said that in spite of that failure they had succeeded in creating a new state, Manchukuo. He also said that at first it was the plan of Kwantung Army to exploit Manchuria while under the Japanese Kwantung Army occupation, but that he had urged that a new and independent state be created in order to avoid international complications. And this proposal of his was taken up.”
On being questioned by the prosecution “Did he tell you what the ultimate objectives of the plans were?”, the witness said “Yes”. “To make of Manchuria a base from which to bring about the revival of Asia.”

In answer to a further question of the prosecution “Did he say anything with reference to what the Kwantung Army advocated concerning Manchuria at the time of the Incident?” the witness said; “He said that it was the Kwantung Army’s intention to occupy Manchuria, to destroy the influence of the war lords in that area, and to bring about the economic development of that territory under army occupation.”

Captain CHO in June 1932 told the witness at Shanghai “the the purpose of the October Incident was to cleanse the ideological and political atmosphere of that time, which was extremely corrupted; to renovate internal Japanese politics by assassinating the leaders of the Government at that time; to set a new renovated government, and thereby save the nation; and then to bring about unity among the people in order to secure their unanimou support of the settlement of the Manchurian situation.
HASHIMOTO also in 1934 told him exactly what Captain CHO had said in 1932.

In 1929 General TATEKAWA told the witness “that under all circumstances Manchukuo—Manchuria should be placed under Japanese control and that it should be made into a self-sustaining state or self-sufficient state, with the exception of petroleum.”

In 1934 TATEKAWA gave to the witness the purpose of the October Incident to be one of overthrowing the government then in power and to set up in its place a new government which would support the Manchurian Incident, adding that he would support such a new government.

Excepting what is ascribed to Dr. OKAWA and Colonel HASHIMOTO, the object of the conspiracies named by this witness falls far short of what the prosecution claims to have established in this case. The utmost that we get from this evidence is that there was a plan to obtain control of Manchuria by military force. Even the statements ascribed to OKAWA and HASHIMOTO would not carry us to the object and the means of the conspiracy charged in this case.

I shall discuss the March and October incidents of 1931 and similar other incidents of subsequent dates while considering the question of seizure of political power by the alleged conspirators. For my present purpose it would suffice to say that however sinister these incidents might be they had nothing to do with the conspiracy charged in this case. Their introduction into the evidence justly provoked the defense comment that “a long series of isolated and disconnected events covering a period of at least fourteen years are marshalled together in hodgepodge fashion; and out of this conglomeration the prosecution asks the Tribunal to find beyond all reasonable doubts that a common plan or conspiracy existed to accomplish the objectives stated in the indictment.”

After a careful consideration of all the evidence adduced on the point at the present trial, I still feel we shall not be entitled to go beyond the report of the Lytton Commission, and, in my opinion, that report would not justify us in finding the Manchurian incident as the result of any conspiracy as alleged in the indictment.

If necessary, I would not have hesitated in saying that this incident was not aggressive war within the meaning that can be assigned to that expression for the purpose of fixing criminal responsibility on those who were at the helm of affairs of the Japanese Government and the Army at the time.

At any rate the powerful nations seem to have declined to treat this act as criminal and this conduct of the nations goes a great way to show the state of law then existing. Professor Max Radin of the University of California in an article published in April 1946 on “justice of Nuremberg” speaks of the effect of the Kellogg-Briand Pact of 1928 and of the Geneva Protocol of 1924 in the following terms:

“By that Pact, Germany among many other nations formally renounced war as a means of international policy and vigorously denounced all wars of aggression. But whatever may have been the statements of individual statesmen and publicists, those who recall the circumstances in which the Pact was made will only with difficulty be persuaded that at the time any sanction was contemplated in public opinion, other than at the most, an economic boycott, and, at the least, the moral disapproval of the world .”

The learned Professor then pointed out that “the words ‘international crime’ used about an aggressive war in the Geneva Protocol of 1924 cannot be rated higher now than it was rated then as a rhetorical term—a noble rhetoric, to be sure—but not a term with definite legal content.”

Professor Radin then makes certain observations which would have a pertinent bearing on the question before us. The learned Professor says:

“If the violation of the Kellogg-Briand Pact or of the Geneva Protocol constitutes a crime, either for the nation or for the persons instigating it, then the conduct at the time of all the Powers that joined in creating the Tribunal at Nuremberg puts them in the unfortunate light of having acquiesced in what they now denounce as criminal.

No official protest was made by these Powers when acts violating the Pact were committed. The personal indignation of such high-minded men as Mr. Stimson, Secretary of State when Japan invaded Manchuria, was shared, so far as our records go, neither by the President nor the Congress. And if it was shared by the majority of the people, there is abundant reason to hold that at that time no substantial number of Americans would have approved of war on Japan because of it.

“Did the United States, did Great Britain, France and Russia become accessories after the fact in these crimes when they declined to treat them as crimes and continued close relations both with the nations that had committed them and the persons who had instigated them? It is hard to understand why that conclusion does not follow.”

That conclusion certainly follows if we accept the view that Japan and the present accused persons committed the crime now alleged in relation to the Manchurian Incident. I am however inclined to the view that there existed sufficient OBJECTIVE CONDITION so as to entitle Japan to plead that she bona fide decided upon this measure as necessitated by self-defense, and consequently, even if I could accept the view that aggressive war became crime in international law at the date of the Manchurian Incident I would not have held this to be such an aggressive war at all.

Japan herself in her statement presented to the Council of the League of Nations stated thus: “The special position of Japan in Manchuria to which so much mystery is attached is a very simple matter. It is nothing but the aggregate of Japan’s exceptional treaty rights (plus the natural consequences of her propinquity, geographical situation, and historical associations) and vital and justified measures of self-protection as the standard principle laid down in the Caroline case, that every act of self-defense must depend for its justification on the importance of the interests to be defended, or the imminence of the danger and on the necessity of her act. . . . The statements at the time of the negotiations which led up to the signature of the Briand-Kellogg Treaty for the outlawry of war, made by Mr. Kellogg himself (Note of June 23, 1928) in the Senate of United States; by the British Foreign Secretary of the day (Notes of May and July 1928) and by the French and German Governments, clearly reserved the right of self-defense, and none contradict the observations made by Mr. Kellogg that “every nation ... is alone competent to decide whether circumstances require recourse to war in self-defense, ” which the British and French notes expressly corroborate.”

As has already been noticed by me, Mr. Kellogg’s note of June 23, 1928 referred to in the above statement was a circular note addressed to various nations including Japan, where Secretary Kellogg commented on the question of self-defense in the following terms:

“There is nothing in the American draft of an anti-war treaty which restricts or impairs in any way the right of self-defense. That right is inherent in every sovereign state, and is implicit in every treaty. Every nation is free at all times, and regardless of treaty provisions, to defend its territory from attack or invasion, and it alone is competent to decide whether circumstances require recourse to war in self-defense. If it has a good case, the world will applaud and not condemn its action. Express recognition by treaty of this inalienable right, however, gives rise to the same difficulty encountered in any effort to define aggression. It is the identical question approached from the other side. Inasmuch as no treaty provision can add to the natural right to self-defense, it is not in the interest of peace that a treaty should stipulate a juristic conception of self-defense, since it is far too easy for the unscrupulous to mould events to accord with an agreed definition.”

The then Japanese Minister of Foreign Affairs Baron Tanaka in replying to the above note on July 20, 1928, observed, inter alia:

“The Japanese Government are happy to be able to give their full concurrence to the alteration now proposed, their understanding of the original draft submitted to them in April last being . . . substantially the same as that entertained by the Government of the United States.”

This is the record on which Japan rested the claim that its action in Manchuria had been in no way contrary to the Briand-Kellogg Pact.

No rule of international law would seem more firmly established than this that treaties are to be interpreted in the light of the intent of the negotiators. That intent, naturally, is assumed to be stated in the text of the treaty itself, but it may also be sought elsewhere, either in specific reservation attached to treaties at the time of signature or ratification, or in interpretations, clarifications, understandings, constructions, qualifications, or actual conditions set forth during the negotiations, prior to the ratification. The fact is that Japan, in common with other signatories, adhered to the Pact because of the very interpretations given by Mr. Kellogg, and particularly by his unreserved recognition of an undefined and unrestricted right of self-defense.

As I have already pointed out, even in course of the negotiation between Japan and the United States of America just on the eve of the present Pacific War, an action of legitimate self-defense was understood by the United States of America to mean “their own decision for themselves whether and when and where their interests were attacked or their security, threatened”. This self- defense was understood to extend to the placing of armed forces in any strategic military position keeping in view “the lightning speed of modern warfare”.

The action of Japan in Manchuria would NOT, it is certain, BE APPLAUDED BY THE WORLD. At the same time it would be difficult to condemn the same as CRIMINAL. If a territorial sovereign is required to pay the same price for external defense of territorial integrity, whether such defense is demanded of an eastern or western nation, I would not, in the facts and circumstances then prevailing in Manchuria, and in view of the international law then existing, condemn the action of Japan AS CRIMINAL.

I have given elsewhere Japan’s position in international relations since the World War I. In the Peace Conference of Paris, Japan had taken rank as one of the four principal Allied Powers and in the Versailles Treaty Germany had to make formal transfer to her of former German rights and interests in the Chinese Province of Shantung. The signature of the Versailles Treaty on the 28th June, 1919, was looked upon by the other Allied Powers as crowning Japan’s efforts at prosperity. Yet, as has been shown by the Surveyor of International Affairs, this proud moment proved to be, not the dawn of a golden age in which the Japanese people would be allowed to enjoy at ease the fruits of so laborious a national effort but rather a culminating point from which Japan was to descend into a valley of tribulation. The years that intervened between 1919 and 1926 brought a dramatic reversal injapan’s international position. The Soviet Government, assisted by American diplomacy, succeeded in salving for the U. S. S. R. the heritage of the former Russian Empire as a Far Eastern and Pacific Power. The Chinese swiftly discomfited Japanese Economic Imperialism by those methods of half-spontaneous mass resistance which they afterwards employed with equal effect against Great Britain. Japan’s industrial boom proved to be a mushroom growth stimulated by abnormal war conditions, and such permanent gains as she had made in the economic field turned out to have been made on a far larger scale by the United States.

In the Washington Conference, the United States co-operated with the British Empire to restore, politely but insistently, the balance of power in the Pacific and the Far East. The earthquake followed the slump as a crowning economic blow. The United States Restriction of IMMIGRATION ACT OF 1924 followed the Washington Conference as an overt political humiliation. Last of all, in the year 1926 itself, came the rise of the Kuomintang in China with Russian Communist assistance. During the first stage in this movement when the Kuomintang was making itself master of the Yangtse Basin, the brunt was borne by Great Britain; and during 1926, as well as 1925, Japan saw her trade with China increase owing to British unpopularity.

Yet, on a long view, these developments in China were more ominous for Japan than they were for Great Britain. Even if all British interests in China had perished, Great Britain herself would still have survived as one of the great commercial and political Powers of the world; but Japan— first bound to the Far Eastern mainland by an unalterable accident of geography, as Britain was bound to the continent of Europe—could scarcely hope to maintain her hard-won rank of a Great Power if the U. S. S. R. and a mili- tantly Nationalist China, reunited by Russian aid, were to league themselves together against her. Poor as Japan was in minerals, her economic interests in Manchuria were not superfluities but vital necessities of her national life. On the other hand, her political status in the leased territory of Kwantung and in the zone of the South Manchurian Railway was not only an eyesore to Russia but was a servitude upon Chinese national sovereignty which Young China might be expected to challenge as soon as it would lay in her power.

Thus the international position of Japan—with Nationalist China, Soviet Russia, and the race-conscious English-speaking peoples of the Pacific closing in upon her—had suddenly become precarious again. At the same moment, the internal equilibrium of Japan had been disturbed by equally vast and equally sudden political and social changes. I shall notice this internal disturbance while considering the question of seizure of political power by the alleged conspirators. The prosecution, of course, chose to look upon this also as an integral part of the conspiracy alleged in the indictment.

I need not notice here in detail these momentous developments in the internal life of Japan. For my present purpose it would suffice to say that all
these had the effect of producing the then foreign policy of the Japanese Government and influencing the mind of the intellectuals.

The policy of a country is indeed an evolutionary process arising from similar circumstances. Whether the then Japanese policy was one of enlightened self-interest dependent upon justice and fair play towards a neighbour, or was only one of self-seeking aggression is not very material for our present purposes. All that I need point out here is that the evidence simply discloses a certain attitude of Japan towards Manchuria and does not necessarily indicate any design or conspiracy of the kind alleged in the indictment.

Circumstances were moulding the foreign relations of Japan. Whether the foreign policy that was developing were justifiable or not, I cannot say on this evidence that it was the result of any over-all conspiracy as alleged in the indictment or that it, in any way, indicated the existence of any such conspiracy . In my opinion the prosecution allegation in this respect is a fantastic one.

Manchuria itself was a pressing problem for Japan at that time and the evidence, in my opinion, does not lead us to any design against any country beyond Manchuria.
THE NINE-POWER TREATY of Washington has often been adverted to in this connection.

The significance on Japanese life of this Nine-Power Treaty and similar other measures of the time may be best expressed in the language of the Survey of International Affairs for 1920-23. After stating how the statesmanship of English speaking Powers was a factor operating to frustrate Japanese ambition and how the diplomacy of the English speaking peoples was strongest at precisely those points where that of Japan was weak, the Surveyor says:

"Step by step they maneuvered her out of what had seemed impregnable positions. The refusal of the Chinese Government to sign the Versailles Treaty was given significance by the refusal of the United States Congress to ratify it; the resistance of the Far Eastern Republic to Japanese policy in Siberia was reinforced by discreet but vigorous reminders from the State Department to the Japanese Ministry of Foreign Affairs, regarding the identic declaration of July and August, 1918.

The Anglo-Japanese alliance was replaced by the Four-Power Treaty of the 13th December 1921, which had as its corollary the Yap Treaty of the 11th February, 1922; the Twenty-One Demands were replaced by the new Consortium Agreement of the 15 th October, 1920, and the Nine-Power Treaty regarding China of the 6th February, 1922; the Shantung Articles of the Versailles Treaty were replaced by the Chinese-Japanese Treaty of the 4th February, 1922; and naval competition was replaced by the limitation of naval armaments. Yet all these movements were made with a courtesy and a good humour which deprived Japan of the slightest occasion to take offense or to precepitate a rupture. Adroitly and deferentially she was induced to play a distinguished part in un-doing the work of her own hands."

This is the part which the Western statesmanship and diplomacy played in this dramatic chapter of the history of Japan. We may also recall to our memory that this Washington Conference was followed by the United States-Restriction-of-Immigration Act of 1924 as an overt political humiliation. There is no doubt that these events measure the triumph of diplomacy and statesmanship of the English speaking people. But I am not sure if this triumph can be made an occasion for congratulation. That, however, is beside the point here. These maneuvers might have greatly influenced the subsequent developments.

For the present purpose it is not necessary for us to see if the then world state of affairs including the internal and external affairs of Japan and the disorderly developments in China would justify the Japanese action. The developments certainly offer an explanation of the Japanese Manchurian Policy without a conspiracy as alleged in Count 1 or even in Count 2 of the indictment. If all other Powers can have foreign policies without a conspiracy between their statesmen and diplomats, I do not see what is there in the evidence adduced in this case which would drive us to infer such a conspiracy on the part of Japan.

But even assuming that there was a conspiracy as alleged in the Indictment and that the Manchurian Incident was the result of that conspiracy, it remains yet to be seen how the present accused are connected with them.

Of the persons arraigned for trial before us only DOHIHARA, HASHIMOTO, ITAGAKI, KOISO, MINAMI and OKAWA could even be named in connection with the alleged conspiracy upto this stage. There is not even the remotest suggestion in the evidence which, in my opinion, can raise even the lightest suspicion against any other of the accused.

Of course the witnesses have spoken of “ some young officers of the Kwantung Army”, and, certainly some of the present accused were, at the date of the incident, comparatively young and were officers of the Kwantung Army. But I hope no one, on this ground, would say that there is evidence against them in this respect.
The prosecution in its summation of the case against DOHIHARA characterizes him as a fore-runner of aggression and says that “he was one of the original conspirators and participated in the conspiracy from the very beginning to end.” The prosecution laid emphasis on the following allegations and the evidence referred to against them, in order to establish DOHIHARA ’ s participation in the conspiracy:

1.            Prior to the Mukden Incident DOHIHARA already had spent 18 years in China and his knowledge of situation there had won the recognition of the superiors (Exh. 2, 190-A, T. 15, 723 T. 19,995).

(a) He was particularly familiar with the situation in Manchuria (Exh. 2,190-A, T. 15,722).
2.            DOHIHARA became intimately acquainted with Dr. OKAWA Shumei who fervently advocated the incorporation of Manchuria into the Japanese Empire (Exh. 2,177-A, R. P. 15,565-6).
(a) For more than two years prior to the Manchurian Incident OKAWA had been agitating for positive action in collaboration with the Army (Exh. 2, 177-A, R. P. 15, 573-5, Exh. 2,178, R.P. 15,595).
(b) (i) DOHIHARA being an army man and expert on China became one of the very inner circle.
(ii) Other members of the army who were intimately acquainted with OKAWA included the accused ITAGA- KI and KOISO (Exh. 2, 177-A, R.P. 15,565).
(iii) DOHIHARA was involved in the drafting of a plan to set up a Cabinet centreing around the army with a more positive policy toward Manchuria (Exh. 2, 177-A, R.P. 15,587).
3.            In August 1931, DOHIHARA was appointed the chief of the Special Service Organ of the Kwantung Army at Mukden and arrived there on 18 August 1931 (Exh. 2,190-A, R.P. 15,713-4).
(a)
(i) Ostensibly he went there to investigate the case of Captain NAKAMURA and to negotiate with the Chinese authorities on the matter.
(ii) His real mission was to investigate and determine the strength of the Chinese forces, their training, their communication and the condition of the civilian population (Exh. 2,190-A, R.P. 15,724-25).
(iii) On this occasion he had made an extensive trip through Shanghai, Hankow, Peking and Tientsin (R. P. 15,725).
(b)
(i) While Chinese authorities were making every effort for an amicable solution of the NAKAMURA case, DOHIHARA continued to question the sincerity of the Chinese effort to arrive at a satisfactory solution (Exh. 57, page 65; R.P. 28,642).
(ii) This shows that DOHIHARA after making the extensive trip counted on China s lack of power to resist, and consequently stood ready for positive measures.
4.            Early in September 1931, reports came to Tokyo that ITAGAKI and other staff officers of the Kwantung Army, with the NAKAMURA case as the pretext, were scheming to start military action in Manchuria (R.P. 1,324, 33,590).
(a) (i) DOHIHARA was summoned to Tokyo to report.
(ii) DOHIHARA was quoted by the press as the advocate of solving all pending issues in Manchuria by force, if necessary, and as soon as possible (Exh. 57, pages 64-66).
(iii) Upon DOHIHARA’s report, TATEKAWA of the general staff who had always maintained that Manchuria should be placed under Japanese control, was sent to Mukden (R.P. 2,002; Exh. 2,190—R.P. 15,714; 15,725-26).
(iv) DOHIHARA immediately followed (R. P. 15, 714, 
15,725-26).
(v) On the day TATEKAWA made his appearance in Mukden, dressed in civilian clothes, the incident broke out (R.P. 3,002-3).
(b)
(i) Although DOHIHARA himself was not in Mukden on the night of September 18, 1931, when the Mukden Incident broke out, the office of DOHIHARA’s special service organ was, nevertheless, the centre of invasion operations (R.P. 30,353, 30,355).
(ii) Evidence of subsequent events clearly shows DOHIHARA’s role in the activities of September 18.
5.            Following his return from Tokyo, DOHIHARA was appointed on 21 September, 1931, Mayor of Mukden assisted by an Emergency Committee with a majority of Japanese members (Exh. 57, page 88).
(а)          The assumption of mayoralty by DOHIHARA was significant.
(i) For the first time an officer of the active service in the
Japanese army took over the administration of a city in China, whose territorial and administrative integrity Japan had pledged to respect by the Nine-Power Treaty.
(б)          In the latter part of September 1931, when the Self-government Guidance Board was set up in Mukden to foster the so- called independence movement, DOHIHARA was in charge of the special service or espionage division (R. P. 2, 793- 4).
(b) Every effort was being made toward the realization of local autonomy sponsored by the Japanese army (R. P. 33,628-9).
(c) DOHIHARA was also active on the Local Peace Preservation Committee and exercised a great deal of pressure on the Chinese officials left behind there (R. P. 3, 962-3; 33,605-6).
(d)          DOHIHARA headed and executed the plot to remove the Ex- Emperor PY YI from Tientsin to Manchuria (R. P. 15,726, 33,618).
According to the prosecution the above allegations have been established by the evidence cited against them and they establish the two following matters:
1.            That DOHIHARA was one of the plotters of the Mukden Incident of September 18, 1931.
2.            That DOHIHARA was one of the conspirators of (a) the over-all conspiracy as charged in count 1,
and (b) the limited conspiracy as charged in count 2.

Leaving aside for the present the over-all and the limited conspiracies charged in counts 1 and 2, it may safely be said that the evidence does not in
the least connect DOHIHARA with the alleged plotting of the Mukden Incident. Excepting the fact that his office room was utilized by the army officers during his absence for the purpose of carrying on operations immediately on the breaking out of the incident, there is absolutely nothing in the evidence which would in any way suggest his connection with the alleged plot.

Of the matters relied on by the prosecution for the purpose of connecting DOHIHARA with the Mukden Incident, item 1 as stated above need not detain us at all. DOHIHARA certainly had spent 18 years in China and was familiar with the situations there. But that does not indicate anything relevant for our present purpose.
For item 2, reliance is placed on exhibit 2,177-A, the testimony of Dr. OKAWA in the Tokyo Court of Appeal at the trial for the May Incident of 1932. Dr. OKAWA said that he became intimately acquainted with certain military officers, and named, amongst others, Major General DOHIHARA, Major General ITAGAKI, and Lieutenant General KOISO. It seems that he acquired this acquaintance after he became an employee of the South Manchurian Railway Company.

As regards his “fervently advocating the incorporation of Manchuria into the Japanese Empire”, reliance is placed on that portion of the above testimony where Dr. OKAWA was speaking about the essay for his degree of Doctor of Law. In course of his study for this essay he acquired “the belief that the age of great powers was gone and that the age of super-great powers had come”. “For a nation to keep going as an independent country in this present age, she would possess a territory that is at least self-sufficient. The present state of world affairs proves this clearly.”ln answer to the question, “in the case of Japan, what kind of territory should she incorporate?” Dr. OKAWA answered by saying “Korea and Manchuria are within the scope of possibility, but I believe, Manchuria alone will not be sufficient.”

I do not know whether, because of this view of his, Dr. OKAWA became such a vicious person that even an acquaintance with him would indicate guilt in DOHIHARA. The evidence itself does not go beyond the factum of acquaintance. It does not even speak of DOHIHARA’s acquaintance with OKAWA’s “advocacy”, and certainly there is nothing in it to indicate that DOHIHARA shared that view of Dr. OKAWA.

The statement that OKAWA “fervently advocated the incorporation of Manchuria into the Japanese Empire” is sought to be supported by the prosecution with the above testimony of Dr. OKAWA. In its summation the prosecution refers to exhibit 2, 177-A at page 15, 566. There he refers to his study which became the essay for his degree of Doctor of Law and in that connection speaks of the “age of super-great powers”.

In that connection he refers to Korea and Manchuria as the territories “within the scope of possibility” of incorporation. Of course there is no suggestion of any incorporation by force. On the other hand at the next page he speaks of “Japan's influence in Manchuria” gained through diplomacy, laments absence of unity in Japan’s national opinion in its diplomacy towards foreign countries, refers to what he considers to be diplomatic stupidity and complains that “if such a thing is continued, Japan’s overseas development can never be accomplished.”

Reading the testimony as a whole it is difficult to find any advocacy of development or incorporation by force. Incorporation contemplated here seems to be more an economic incorporation than a political one. It is something like the “British World Order” depicted by the Surveyor of International Affairs in 1931. I shall have occasion to refer to this world order later on. The evidence relied on by the prosecution at least does not speak of any incorporation into the Empire.

As regards item 2(a), reliance again is placed on the same testimony. But the testimony does not go so far as is summarized by the prosecution in this item. In this part of his testimony, Dr. OKAWA was saying that he started “a people’s movement because he thought that the Manchurian and Mongolian problems could not be left in the hands of capitalists and politicians, but should be solved by a people’s movement." He “gave lectures about this.” “On the opinion that a small country cannot be independent, he reasoned that he should let the people know that Japan, for the time being, should attempt economic development in Manchuria; that the nation cannot go on without having the foundation of her national life built on a united economic system of both Japan and Manchuria and that if this is done, the Manchurian problems, too can be solved.” Dr. OKAWA said that he undertook this lecturing in the latter days of April or in May 1929 and continued it upto the outbreak of the Manchurian Incident. Hitherto we have not heard anything about any “positive action” or “positive action in collaboration with the army.”

The witness, however, went on, and, in answer to a question “were there any repercussions?” said “There was a very unexpected reaction. At first, I did not know how much the repercussion would be, and when I consulted with the army authorities about undertaking the project together, the army did not agree, stating that it would be criticised as militarism and imperialism and lose its effect if the army would join. Hence I undertook it alone . . . .” The witness then claimed “ that as the voice of dissatisfaction grew louder among the people, the army took note of this trend and began to take positive action gradually.” “The army being alert on taking advantage of opportunities, began taking positive actions as soon as this trend became great. And finally, they began to act together with us, and the Army General Staff and other departments, even began sending lecturers to us.” This is the whole story and as I read it, there is nothing in it to support the summation that “OKAWA had been agitating for positive action in collaboration with the army.”

The prosecution summation by using the expression “positive action” and speaking of this “positive action” as something to be “in collaboration with the army” seemed to suggest some sinister overt act involving user of force. There is nothing in Exhibit 2, 177-A which would even suggest any such thing. So far as this testimony of Dr. OKAWA is concerned, the expression ‘positive action’ means nothing more than active collaboration in the matter undertaken by the witness; and the context shows that the witness was only speaking of his efforts towards moving the public mind in a certain direction.

‘Seeking army assistance’ in Japan did not necessarily mean any design for the user of force. The Army in Japan was really a peoples’ party. The Japanese army was recruited by universal conscription. The rising generation of the rural proletarians formed the backbone of the rank and file, and “the army at the relevant date regarded itself as the champion of the peasantry, which had been reduced to the condition of a desperate rural proletariat” by the then world condition. I shall have to consider later the relation in which the army at this time stood to “the people” of Japan. For my present purpose, it would be sufficient to say that appeal to army for collaboration by a person who was seeking to enlist the sympathy of the people in favour of his movement, did not necessarily have any sinister significance.

That DOHIHARA “became one of the very inner circle” as asserted by the prosecution in item 2 (b) (i) above is mere assumption on its part and, of course, there is no evidence in support of it.

As regards DOHIHARA’s “involvement in the drafting of a plan to set up a cabinet, ” as stated in item 2 (b) (Hi), the evidence relied on is again the same testimony of OKAWA. The witness is there speaking of the October Incident. On being questioned “who drafted the ultimate plan?” OKAWA said “I do not know exactly, but the person who gave me orders was Kingoro HASHIMOTO.” Then he was asked “then you do not know who was at the top drafting the plan?” His answer was “I have an idea.” The next question was “are SHIGETO, HASHIMOTO, ITAGAKI and DOHIHARA involved?” The witness said “yes”. This is no better than OKAWA’s guess and I do not see how such a guess or such a surmise on his part entitles us to say that DOHIHARA was involved in this plan.

In support of its summation as given in item 4 above the prosecution referred us to the evidence at pages 1,324 and 33, 590 of the record. The evidence is the testimony of Baron SHIDEHARA, and it nowhere speaks of any report “that ITAGAKI and other staff officers of the Kwantung army with the NAKAMURA case as the pretext were scheming.” The record page 1,324 records exhibit 156, the affidavit of Baron SHIDEHARA. The affidavit says, “Shortly before the Manchurian Incident as Foreign Minister I received confidential report and information that the Kwantung Army was engaged in amassing troops and bringing up ammunition and material for some military purpose, and knew from such reports that action of some kind was contemplated by the military clique.” Nowhere the affidavit names “ITAGAKI and other staff officers” as claimed by the prosecution by its summation. In his cross-examination on this point at record page 1,333 the witness said that the word ‘report’in this part of his affidavit was not quite correct. The witness said “what I actually meant was ‘rumours’; that is to say, Japanese residents in Manchuria used to come and talk to me and in the course of these conversations they told me something of this nature. I did not receive anything in the nature of an official report.” At page 1,335 he explained the expression “military clique” by saying “at the time I heard that it was the younger officers in the army who were contemplating this action.” At page 33, 590 also he did not carry the matter further. He spoke of some four or five civilian residents in Manchuria coming to him and saying that “ some young offleers came to them and ordered some help etc.”.

I do not see how on the strength of this evidence the prosecution could base its assertion that “reports came to Tokyo that ITAGAKI and other staff officers of the Kwantung army” were scheming and that they were scheming with the NAKAMURA case as a pretext. The entire thing appearing in the prosecution summation against DOHIHARA in this respect is mere assertion on the part of the prosecution not supported by the evidence.

The prosecution summation as given in item 4 (a) (Hi) above is highly misleading. The summation seems to suggest as if DOHIHARA’s report suggested TATEKAWA as the emissary. Certainly that is not the evidence. DOHIHARA had absolutely nothing to do with TATEKAWA’s selection for the purpose. Exhibit 2, 190 is the interrogation of DOHIHARA taken by the prosecution on 11 January 1946. In this interrogation I could not find anything which would support the statement that DOHIHARA’s report had anything to do with the sending of any emissary to Mukden. As regards TATEKAWA’s “always maintaining that Manchuria should be placed under Japanese control, ” the evidence, of course, is only hearsay of TANAKA Ryukichi of whom I have already said enough.

I have given above the “subsequent events” relied on by the prosecution but I do not see how those events make DOHIHARA’s role in the alleged scheme significant and clear.

DOHIHARA is named in Exhibit 2,177-A as one of the persons who became intimately acquainted with Dr. OKAWA. Dr. OKAWA in that document admitted to have become intimately acquainted with Lt. General KOISO, Major General OKAMURA, Major General ITAGAKI, Major General DOHIHARA, Major General TADA, Colonel KAWAMOTO, Colonel SASAKI and Colonel SHIGETO. This evidence, at the worst, shows only the company which DOHIHARA at that time kept. But I believe we are not going to accept any theory of guilt by association. DOHIHARA’s connection with the incident has also been sought to be established through the fact that after the Mukden incident, " Colonel DOHIHARA was installed as Mayor of Mukden”, and succeeded in restoring normal civil administration within three days. As a result of the event of September 18, 1931, the civil administration of Mukden City and the Province of Liaoning was completely disorganized and even that of the other two provinces was affected though to a lesser extent.

Immediate necessity was the organization of a municipal government and restoration of the ordinary civic life of the city. This was undertaken by the Japanese and carried through quickly and efficiently. I do not see why the appointment of Colonel DOHIHARA as Mayor for this purpose would in any way indicate his connection with the alleged plotting of the incident or even with the conspiracy charged. DOHIHARA was an Army officer, and, the choice of the Army authorities fell on him probably for his efficiency. At least he proved to be an able administrator in this respect. I cannot, on this evidence, connect him with the plot or conspiracy.

The assumption of mayoralty by DOHIHARA might have significance in other respects. It might have even constituted some wrongful acts on the part
of Japan, if, and in so far as, it was in breach of any Japanese undertaking. But I do not see its significance having any bearing on the question of DOHI- HARA’s participation in the alleged plotting of the Mukden Incident. In my opinion, none of the subsequent events relied on by the prosecution, including the removal of PU YI from Tientsin to Manchuria, is of any significance so far as the present question is concerned. They may be of some consequence in relation to the question of the existence or otherwise of the conspiracies alleged in counts 1 and 2, and may have some significant bearing on the question whether DOHIHARA was a participator in those conspiracies. I shall consider this matter in its proper place. But I might at once say that I have not been satisfied as to the existence of any such conspiracy. At any rate I have not been able to connect any of these accused with any such conspiracy.

The evidence, on the basis of which HASHIMOTO, ITAGAKI and KOISO are sought to be connected with the Mukden Incident and with the conspiracy charged, comprises mainly the testimony of TANAKA Ryukichi given here and of OKAWA given in the Tokyo Court of Appeal in 1934. I have already considered this evidence in connection with the Mukden Incident. I would further discuss it while considering the question of seizure of political power. In my opinion the evidence does not establish their connection with the alleged plot and the conspiracy. HASHIMOTO and KOISO, no doubt, were involved in some of the incidents mentioned in the evidence. But, however sinister such incidents might be, they did not indicate any conspiracy of the kind alleged in the indictment.

In order to establish MINAMI’s connection with the Mukden Incident and the conspiracy charged, the prosecution introduced the following materials and claimed that these fully established his connection.

1.            MINAMI’s activities as War Minister prior to the Mukden Incident.
2.            His activities as such War Minister after the incident.
3.            His views on Manchurian Incident.
4.            His activities after his regime as War Minister.
5.            His activities as Commanding General of the Kwantung Army (from 10 December 1934 to 6 March 1936).

MINAMI was War Minister in the Wakatsuki Cabinet from 14 April to 12 December 1931.

It must be remembered that, according to the prosecution case, the then Government of Japan was not in the conspiracy. The conspiracy, according to the prosecution, lay outside the government circle. MINAMl’s position in the Cabinet, therefore, by itself did not make him a conspirator.

His policy, action and attitude as War Minister were testified to by the Prosecution witness WAKATSUKI, the then Premier of Japan. Nothing could be said against him on the basis of this evidence.

The prosecution emphasises the following materials on the strength of the evidence noticed against them:
1.            (a) “MINAMI knew or should have known of the March Incident” (p. 1,963).
(b) “He knew or should have known” 
(i) “that War Office was represented in the Sakura-Kai” (p. 1,963).
(ii)“that the aims of the Sakura-Kai were to carry out an internal revolution and settle the Manchurian Problem” (p. 1,963).
(c) “MINAMI was fully apprised of the seriousness of the situation in Manchuria as early as the summer of 1931 (p. 32,308).
(i)            KOISO spoke to MINAMI about this (p. 32,308).
(ii)           The upshot of such conversations was the dispatch of General Tatekawa to Manchuria to head off irresponsible action (p- 32,309).
(iii) MINAMI knew that Tatekawa was interested in Manchurian problems (p. 19,822).
(iv) MINAMI knew that Tatekawa was the person responsible for releasing the bombs to OKAWA in the March incident (p. 32, 325).
2.            “MINAMI was fully apprised that a crisis was impending”:
(a)          This appears from a meeting which took place in July 1931;
(i) He summoned the Manchurian Railway authorities to his official residence to discuss Manchurian-Mongolian Problems (p- 15,753)
(ii) The army side was represented by various officers including Tatekawa, the conspirator in the March Incident;
(iii) The parties present “exchanged their outspoken opinions regarding the Manchurian-Mongolian Problems ” (p. 15,753)
(b)          Later in the same month MINAMI stated: “The Army has
long recognized the necessity of increasing our divisions in Korea and we hope the day will come when more divisions will be dispatched there” (p. 15, 753)
(c) At a meeting of Army and Division Commanders held on 4 August 1931 MINAMI was quoted as having stated: “Guard Manchuria, our life line” (Ex. 2,207—pp. 15,784-85).
(d) MINAMI was far from passive in his relation to the Mukden Incident:
3.        MINAMI was not an apostle of peace as he seeks to portray himself, as appears from the Report of the Lytton Commission where it is said that the “vigorous speeches by the Japanese War Minister in Tokyo, counselling direct action by the Army in Manchuria” were one of the things which set the stage for the events that took place on 18 September and thereafter (Ex. 57, pp. 66-7; Ex. 186, pp. 2,209-10; Ex. 2,207, p. 15,783).
4.            Studies were being made in the War Ministry prior to the Manchurian Incident concerning the conquest of Manchuria. 
(Ex. 3, 375; R.P. 32,330).
(a) MINAMI knew of this or should have been familiar with it.
(b) (i) He knew or should have known that a group in the army led by Lieutenant Colonel HASHIMOTO and SHIGEFUJI had become so powerful between July and October 1931, that the army could not check such persons (Ex. 179, R.P. 1,926).
(ii) He knew or should have known that “this group including General TATEKAWA were strongly of the opinion that unless Manchuria were seized by Japan, it would be impossible for Japan to become one of the powers of the world as a highly developed national defense state”.
5.            (a) Prior to the Mukden Incident SHIDEHARA notified MINAMI that he had received a cable from the Japanese Consul General of Mukden that within a week a big incident will break out (R.P. 2,006).
(b) At this point the officers responsible for the situation should have been dealt with appropriately, if MINAMI desired to stop an incident. MINAMI, however, did not do a single thing to stave off event (Ex. 3,479; R.P. 33,639).

From the above materials the prosecution invited us to hold “that the SHIDEHARA policy of conciliation was thrown overboard and a new political force emanating from the army came into play, aided and abetted by MINAMI and the Mukden Incident, the overt act of the conspiracy, was permitted to occur. According to the prosecution, the fact that the new political force was aided and abetted by MINAMI, was found by the Lytton Commission. Reference is given as Exhibit 57 pages 66-67. The Commission report however does not give any such simple account of the development of the new policy and of its being thus aided and abetted by MINAMI. After discussing the growing tension between the Japanese and Chinese INTERESTS in Manchuria and describing its effect on the attitudes of the military forces of the two nations, the Commission observed that “certain internal economic and political factors had undoubtedly for sometime been preparing the Japanese people for a resumption of the positive policy in Manchuria.” The Commission then referred to several factors which, according to the Commission “were preparing the way for the abandonment of the SHIDEHARA policy of conciliation with China which seemed to have achieved such meager result.” As such factors the Commission named: (1) “the dissatisfaction of the army”; (2) “the financial policy of the government”; (3) “the appearance of the new political force emanating from the army, the country districts and the nationalist youths, which expressed dissatisfaction with all political parties . . . and which included in its condemnation the self-seeking methods whether of financiers or politicians”; (4) “the fall in commodity prices, which inclined the primary producer to look to an adventurous foreign policy for the alleviation of his lot”, and (5) “the trade depression, which caused the industrial and commercial community to believe that better business would result from a more vigorous foreign policy.”

Certainly if so many factors were preparing the way for the abandonment of one policy and the development of another, it is not possible to fix any responsibility in the matter on any person appearing in the whirlpool of such events and to brand him with the guilt of aiding and abetting. It should also be remembered that the ‘ positive policy > here does not mean any policy of criminal aggression. It was the name given to the TANAKA policy which, according to the prosecution itself, was a policy of collaboration and of full expansion and development of Japanese rights by peaceful means. The policy, it is said, “placed great emphasis on the necessity for regarding Manchuria as distinct from the rest of China and contained a declaration that if disturbances spread to Manchuria and Mongolia, thus menacing Japan ’ s special position, Japan would defend them.” A “resumption” of the “positive policy”, therefore, does not necessarily indicate recourse to any unlawful or wrongful means.

The report in this connection also referred to the “protracted delay by the Chinese authorities in making satisfactory investigation of and redress for the murder of Captain NAKAMURA, ” and observed that this “ had particularly incensed the young officers of the Japanese army in Manchuria, who clearly showed their sensitiveness to irresponsible remarks and slurs made by equally irresponsible Chinese officers on the streets or restaurants and other places of close contact.”

The prosecution assertion of MINAMI ’ s having aided and abetted the overt act in question is based on an observation by the Lytton Commission relating to a vigorous speech by the then Japanese War Minister. The prosecution says: “That MINAMI was not an apostle of peace as he seeks to portray himself, prior to the Mukden Affairs, appears from the Report of the Commission . . . where it is said, that the “vigorous speeches by the Japanese War Minister in Tokyo, counselling direct action by the army in Manchuria” were one of the things which set the stage for the events that took place on 18 September and thereafter.”

The relevant portion of the Commission Report however refers to the part played by the public press of both countries in relation to the incident. The Commission says: “The public press of both countries tended rather to inflame than to calm public opinion. Vigorous speeches of the Japanese War Minister in Tokyo, counselling direct action by their army in Manchuria were reported.” The Commission here was emphasizing, not so much the speech, as its reporting by the press. We are however asked to fix the guilt, if any, for such speech on the author thereof.

The prosecution pointed out this speech as one made by the War Minister MINAMI on August 4, 1931. The original text of the speech was not available. In lieu thereof the prosecution introduced an article in the Japan Times dated August 6, 1931 purporting to quote the alleged speech. This is Exhibit 186 in the case. It does not contain the whole speech but only purports to give an extract therefrom. 

The portion of the speech that is before us stands thus: “Some other observers, without studying the conditions of neighbouring foreign countries, hastily advocate limitation of armaments and engage in propaganda unfavourable for the nation and the army. Manchuria and Mongolia are very closely related to our country from the viewpoint of our national defense as well as of politics and economics. It is to be regretted that the recent situation in that part of China is following a trend unfavourable to our Empire. The recent change in international politics and the recent decline of Japan’s prestige coupled with the recent ascendancy of anti-foreign agitation and new economic power in China, are responsible for such a tendency, which is a phenomenon of permanent duration instead of being a passing one. In view of such a situation, I hope you will execute your duty in educating and training the troops with enthusiasm and sincerity so that you may serve the cause of His Majesty to perfection.”

The occasion for this speech will appear from the statement of the accused MINAMI himself. He says: “On August 4, 1931, I called the customary conference of Division Commanders in the War Ministry for the first time since I assumed the office of War Minister. The address of instructions which I delivered on that occasion unexpectedly aroused the opposition of a section of the political circles. As it would be clear from the glance at its contents, I gave expression to nothing more than a view natural to a War Minister—stating that every effort should be made in the training of soldiers to maintain the efficiency of the Imperial Army under the difficult conditions caused by arms reduction.”

The report contained editorial comments as well and we do not know which report was before the Lytton Commission. The extract before us does not, in my opinion, support the view that the War Minister was “counselling direct action by the army in Manchuria. ”

I have already discussed this piece of evidence while considering the Mukden Incident. Even now I fail to see why such a speech of the War Minister to his Division Commanders at a normal routine conference should indicate such a grave conspiratorial design.

I have already considered the bearing of the March Incident, of the organization of Sakura-kai, of the despatch of Tatekawa to Manchuria, and of the rumours coming from Manchuria about armies creating some incident, on the question of the Mukden Incident and of the conspiracy. I need not repeat that discussion.

The prosecution on the strength of Exhibit 3, 376 at page 32, 302 asserts that studies were being made in the War Ministry prior to the Manchurian Incident concerning the conquest of Manchuria and that MINAMI knew or should have known it. Exhibit 3, 376 is a report from the Commander of the Military Police to the War Minister on “study on the organization of M. P. force in Manchuria”. It is dated July 25, 1931 and begins by saying “we have no need to enlarge upon the fact that in the future war our Empire should secure complete possession of Manchuria and Mongolia from the standpoints of maintenance of fighting ability and of self-sufficiency”. It then refers to studies by “the respective responsible organs” as to “how our Empire should manage and administrate Manchuria and Mongolia in the above case”— and points out “the necessity of enquiry on the M. P. in the occupied area”. We do not know when this study commenced and it might only have been a study keeping in view some remote future contingency. There is nothing to connect this study with MINAMI and I am not sure if MINAMI at all knew it or should have known it.

After a careful consideration of the evidence that could be placed by the prosecution before us I am of opinion that MINAMI’s connection with the alleged conspiracy has not been established.

The Manchurian Incident spread while MINAMI was still War Minister and it spread in spite of the Cabinet decision to the contrary. The evidence clearly establishes that this happened in spite of MINAMI’s efforts to the contrary .

There is nothing in his views on the Manchurian Incident which need lead us to hold that MINAMI was a conspirator. MINAMI still believes that the action taken was justifiable as a measure in self-defense. HONJO even while committing suicide and making a clean breast of everything he had to do with the event still asserted his belief that the incident was started by the Chinese act. I have discussed the evidence above and have pointed out that the doubt is not yet repelled. I do not see why I should not accept MINAMI *s expression of views as bona fide.

His activities after his regime as War Minister indicate nothing and I need not notice them at all.

I shall discuss his activities as Commanding General of Kwantung Army later on. There is nothing in these activities which would in any way connect him with any conspiracy.

OVER-ALL CONSPIRACY
SECOND STAGE
THE EXPANSION OF CONTROL AND DOMINATION FROM MANCHURIA TO ALL THE REST OF CHINA
 
I shall next take up the case of the developments after September 18, 1931, and see how far this can be said to have been the result of some conspiracy and to what extent it can lead us to the inference that there had been the over-all conspiracy as alleged in the indictment.

I have indicated above why I could not accept the prosecution case that the Manchurian Incident was the result of a conspiracy of a group of Japanese politicians and military men. I have quoted above from the Lytton Commission Report to indicate how many factors of diverse origin might have influenced the development of the Manchurian Policy of Japan. I shall later on discuss some of the cases of Japan’s internal trouble and shall show that these did not originate from any conspiracy. I have indicated above the relation in which the army in Japan stands to its people: Army ’ s participation in any matter of policy does not necessarily imply use of force. Keeping all these in view it is difficult for me to accept the simple solution offered by the prosecution of all the happenings of the time by ascribing each and everyone of them to an enormous conspiracy.

The military developments in Manchuria after September 18, 1931, were certainly reprehensible. Despite the unanimous opinion of the Cabinet that the operation must cease immediately, the expansion continued. The prosecution suggests that the army should have been checked by the Cabinet by withholding funds. As this was not done, the prosecution suggests that “the conclusion is clear that no one wanted to or dared to stop the supreme commander of the army.” The evidence discloses that the army, which was responsible for the protection of Japanese lives and interests in Manchuria, did offer some plausible explanation as to why it had to take further action. In an occasion like this, it is not possible for any government, including its war minister, to disregard such explanations coming from such a responsible person of high position as a commander of the army. If no one wanted to, or dared to, stop the supreme command by having recourse to the extreme method suggested by the Prosecution of withholding funds on an occasion like this, it might only indicate that he was not so obsessed with the idea of his own personal prestige, or of the prestige of the Cabinet decision, as to take the risk of a national disaster by thus ignoring the decision of a responsible man on the spot. Unless we start with the assumption that the Cabinet knew that the army was only executing a conspiracy, I do not see how the alleged inaction on the part of any cabinet member in this respect can indicate his connection with the conspiracy. Instead of this conduct having the proposed persuasive effect on any mind, it will really require an already persuaded mind to see anything sinister in such a conduct.

The prosecution says that by May 31, 1933, the military conquest of all Manchuria and Jehol had been completed. On May 31, 1933, the Tangku Truce was signed. With the signing of this truce the good relation between China and Japan were restored. The prosecution itself says that after this truce the relations between China and Japan became good for the time being and on May 17, 1935, it had been decided to raise the Japanese legation in China to an embassy. There were, no doubt, certain disturbances in the early part of 1935 but these were all compromised and settled, and, on June 10, 1935, the HO-UMEZU Agreement was concluded.
It seems, therefore, that whatever might have happened between China and Japan over Manchuria, the hostility at any rate completely ceased by June 10, 1935. It is difficult to see on what authority and on what legal basis the victors in a subsequent war can now question this action of Japan. But I shall come to this matter later on.

The prosecution case regarding the Japanese expansion in Manchuria may be summarized as yielding the following items:
1.            As soon as the Government of Japan came to know of the Mukden Incident of 18 September 1931, an extraordinary Cabinet meeting was held on September 19, 1931, at which it was decided that the affair would be terminated at once (Ex. 162; R.P. 1,554-55).
2.            Despite the unanimous opinion of the cabinet that the operation must cease immediately the expansion continued.
3.            (fl) As a matter of fact, the army represented by the Supreme Command never wanted the policy of non-enlargement of the incident and never intended to carry it out.
(b) On September 22, 1931, KIDO reported that the army was so strongly determined in its policy towards Manchuria that orders given by the central authorities might not be thoroughly understood, and that the army was indignant because the Emperor had approved the governmental policy under influence of his personal attendance (Ex. 179-1, R.P. 1,938).
(c) The army chief of staff was reported to have told WAKATSU- KI that the army might be compelled to send troops to the Yangtse River, and that if this happened, he did not want the Government to interfere with the prerogative of the Supreme Command of the army. (Ex. 179-K, R. P. 1,939-40).
4.            In October, the conspirators dissatisfied with the government policy and regarding it as the one obstacle to carrying out the conspiracy again planned to seize control of the government. This move became known as the October Incident. The plot was discovered; accused HASHIMOTO and others were arrested (Ex. 3, 195, R. P. 28,795, summation page D 43-44) .
5.            In the meantime the military operations in Manchuria continued to widen.
6.            (a) On December 10, 1931, the WAKATSUKI Cabinet resigned.
(R.P. 1,575-82; Ex. 2,435, R.P. 19,790, summation page D 45).
(b)          (0 Asa result, INUKAI took office with the accused ARAKI becoming his War Minister.
(ii) Immediately upon ARAKI ’ s succession to office, there was an apparent change in the attitude of the Govern- 
ment and in the co-operation between it and the Kwantung Army in furtherance of the conspiracy.
(iiii) A device was found, which, while it permitted the Government to piously assert that it was carrying out the policy of the previous government of non-enlargement - of incident, enabled it to render the aid needed by the Kwantung Army in effectuating the conspiracy (Summation page D 46) .
(iv) Soon after becoming War Minister ARAKI decided that the four Provinces under Chang Hsueh-liang should be pacified and occupied. He made up his plan and obtained the Cabinet approval (Ex. 188-A, B, C; R.P. 2,216-33, sum. p. D47).
7.
(a) While the Kwantung Army was in the process of expanding its military operations in Manchuria, a series of events took place which threatened to expand immediately the scope of the conspiracy beyond the area of the first stage, at a time when the main conspirators were not yet ready to proceed.
(b) This series of events has been often referred to as the First Shanghai Incident (Summation page D 45-50) .
(c) While on the surface Shanghai Incident may appear as a digression from the main stream of the story and to have no relation to the events in Manchuria, it has a definite connection with that portion of the conspiracy (Sum. p. D 52).         
(d) On May 5, 1932, the Shanghai Truce was signed putting an end to what was principally a navy project.
8.            The Shanghai Truce gave rise to a Japanese claim which became the focal point of initiating aggression in China proper (Sum. p. D 52).
9.            On May 15, 1932 Premier INUKAI was assassinated by naval officers (Ex. 161, R. P. 1, 649, Sum. p. D 52); as a result SAITO became the Premier, ARAKI remaining the War Minister (Sum. p. D 53).
10.          The military expansion in Manchuria continued according to plan. By May 31, 1933, the military conquest of all Manchuria and Jehol had been completed.
(a) On that day the TANGKU TRUCE was signed (Sum. p. D 53).
11.          Almost simultaneously with the beginning of military operations and continuing throughout the first half year, there took place a series of highly significant POLITICAL EVENTS WITHIN Manchuria leading to the establishment of the puppet government with PU YI as provisional President.
(a) On March 1932, PU YI was inaugurated, and on March 12, notice was given to foreign powers of the establishment of Manchukuo (Sum, p. D 56, Ex, 57, R. P. 2, 775).
12 This series of events was not a natural phenomenon. Each and every one of them was an integral part of the conspiracy to obtain control of Manchuria.
(a) The League found that a group of Japanese, civil and military, conceived, organized and carried through the Manchurian independence movement as a solution to the situation in Manchuria; that this movement received assistance and direction from the Japanese general staff and could have been carried through only because of the presence of Japanese troops (Sum. p. D 66, Ex. 57, R. P. 2,882).
13.          While the Kwantung Army was proceeding to set up Manchurian Government, Tokyo was taking step to carry out the plan (Sum. p. D 66).
(а)          At first the authorities in Tokyo were opposed to the establishment of an independent Manchuria.
(b) On January 4, 1932, ITAGAKI was sent to Tokyo (Ex. 3,316, R.P. 30,278).
(c)           Following ITAGAKI’ s visit, there was a marked change in the Japanese Government policy and the Cabinet took for itself the power to regulate the business in Manchuria (Sum. p. D 67).
14.         
(a) In May, the INUKAI Cabinet was succeeded by SAITO Cabinet.
(b) This Cabinet was definitely committed to the recognition of Manchukuo (Sum. p. D68).
15.          On September 15, 1932, formal recognition was given and the Japan-Manchukuo Protocol was signed (Sum. p. D 69).
16.         
(a) As soon as the protocol had been signed, the accused KOISO, then
Chief of Staff of the Kwantung Army, was given on November 3, 1932, an outline for the guiding of Manchukuo. (Ex. 230, R. P. 2,903-4).
(б)          Diplomatically while Manchukuo was to adopt a non-inter
ference attitude toward China in principle, she would adopt an anti-Chinese principle and would have the same attitude as Japan towards the Soviet and the United States (Sum. p. D 70-71).
(c) To carry out these programs control was centralized both in Manchuria and in Tokyo.
(d) The Manchurian Affairs Board was set up under the presidency of the War Minister who was thus able to co-ordinate civil and military administration (Sum. p. D 71, Ex. 451, 452, R.P. 5, 113-16). 
17.         
(a) Pursuant to these policies Japan exercised complete political domination over Manchuria.
(6) The control exercised by Japan went far beyond the Government itself and extended to control and domination of the people and their thought. The agency for this part of the task was the Concordia Society (Sum. p. D 74, Ex. 221, R.P. 2,795).
(c)           This society was found on July 25, 1932, by a committee of which ITAGAKI was a member (Ex. 2, 439, R. P. 20,179; Ex. 731-A, R.P. 7,606).
18.          (a) Along with Japan’s acquisition and exercise of political power, she
also acquired and exercised economic domination and control over Manchuria (Ex. 223, 225, 241, 230, 231, 233, 236, 851, 850, 842, 841, 446, 453, 444-A, 239, 438, 840 and 454-A).
(b) The dominant idea was to form a single economic unit of Japan and Manchukuo under Japan’s control (Sum. p. D 76).

It may, at once, be said that the evidence on record completely establishes items 1,2, 5, 6(a), and 6(£>) (i), 9, 10(a), 11(a), 15, 16(a), 17(a), and 18 of the above summation.

Item 3(a) is only the comment of the prosecution. I have already indicated above why I cannot take the same view of the military expansion. It may not be possible for us now sitting in a court-room to see the exact difficulties, imaginary or real, which the army authorities on the spot had to face, or felt that they had to face when the hostility was going on. From the evidence before us, including the testimony of General HONJO, who before committing suicide and in the spirit of making a clean breast of the entire happening, left this statement, I cannot ascribe the subsequent enlargement of the incident to a preconceived plot on the part of the responsible authorities.

In support of its observation regarding the attitude of the army the prosecution relied on two entries from KIDO’s diary given in evidence on the 5 th July 1946. These are exhibits 179-1 and 179-K. Exhibit 179-1 which is an entry in KIDO’s diary dated 22nd September 1931 is only his opinion, although formed by him after discussing and studying “various things coming from various directions”. Of course, the entry does not say “that the orders given by the central authorities might not be thoroughly understood” as is given in the prosecution summation. The entry says: “that orders given by the central authorities may not be carried out.” The difference, however, is not very material for our present purposes though the one is a sarcastic and the other is only a definite statement of opinion.

We do not know what are the “various things” and what are the “various directions” from which these various things reached the author of the diary. It is difficult to appraise the value of the opinion formed without these materials. 

Exhibit 179-K is a hearsay of the second degree, if not of the third degree. The Chief of the army general staff is alleged to have said something to the then Premier WAKATSUKI. WAKATSUKI is said to have reported it to HARADA. The author of the diary heard it from HARADA and reported it to the Lord Keeper of the Privy Seal and recorded in his diary what he thus reported. Premier WAKATSUKI himself had given evidence for the prosecution on the 28th June 1946. His evidence comprised his statement taken out of court by the prosecution and is exhibit 162 in this case. There is nothing in his testimony regarding this matter.

As regards item 4, the October Incident no doubt was planned. But the reason given is the observation of the prosecution. I shall discuss this matter in connection with the question of seizure of government control.

Item 6(6) (i) and 6 (6) (iii) are also mere observations of the prosecution. Item 6 (6) (iv) is based on exhibit 188 series, these being the interrogatories of accused ARAKI taken in Sugamo prison after he became a prisoner. The accused said, “after I became War Minister, I discussed the policy of the occupation of General Chang's four Provinces to clear up the Manchurian situation. After I had made the plan up myself with the Prime Minister, the Foreign Minister and the Finance Minister, as agreed with me, the Prime Minister approached the Privy Council for approval.” A policy was thus decided upon by the then government and it remained to be carried out by the general staff.

When a Government adopts a policy it does not necessarily form a conspiracy . It is needless to say that a government policy is not always of a very simple origin. As I have noticed elsewhere several factors were preparing the way for the resumption of the positive policy in Manchuria. Of such factors the Lytton Commission mentioned (1 “the dissatisfaction of the army”; (2) “the financial policy of the government”; (3) “the appearance of the new political force emanating from the army, the country districts and the nationalist youths, which expressed dissatisfaction with all political parties, which despised the compromise methods of western civilization and relied on the virtues of old Japan and which included in its condemnation the self-seeking methods whether of financiers or politicians”; (4) “the fall in the commodity prices, which inclined the primary producer to look to an adventurous foreign policy for the alleviation of his lot”; (5) “the trade depression, which caused the industrial and commercial community to believe that better business would result from a more vigorous foreign policy.”

None of these can be said to be the product of any conspiracy. Add to these the disturbances which the then Japanese statesmen and politicians felt that they had to face in Manchuria. I do not see why it would provoke any sarcastic remark even if any statesman adopting such a policy says that it was so adopted to bring peace and order to the territory. It may not be a justifiable policy, justifying one nation’s expansion in another’s territory. But remembering the trend of international behaviour I do not see why we cannot accept this even as an explanation of the expansion without having recourse to a hypothesis of an enormous conspiracy. No one would applaud such a policy. No one would perhaps justify such a policy.

Yet this need not drive us to a theory of conspiracy. As a program of aggrandisement of a nation we do not like, we may deny to it the terms like “manifest destiny”, “the protection of vital interests”, “national honour” or a term coined on the footing of “the whiteman’ s burden”, and may give it the name of “aggressive aggrandisement” pure and simple. Even then we do not come to the conspiracy as alleged in the indictment.

Before leaving Japan ’ s action in connection with Manchuria, I must say a word about the alleged puppet government of Manchuria and its bearing on the question of over-all conspiracy.

Manchukuo was established as an independent state and Japan accorded her recognition to it in September 1932.

Pu Yi, the ex-Emperor of Manchukuo, has given evidence in this case to say that he was a mere puppet in the hands of the Japanese and that the Government set up in Manchuria was a puppet government. I do not see much relevancy of this fact for our present purposes. The only way in which this evidence can be utilized in the present case is to view this fact as a retrospective evidence of the initial plan of Japan.

The Japanese Government’s motives for taking this particular step are not easily discernible. There is no obvious answer to the question why it was that the Japanese had elected to play out this elaborate political farce.

Assuming that the ultimate aim of the Japanese was to make themselves masters of Manchuria, it is not immediately evident that this aim was served by the erection of ‘Manchukuo’, for it was not the fiction of ‘Manchukuo’ that was placing the realities of power in Manchuria in Japanese hands. On the contrary, the power to play the farce of ‘Manchukuo’ on the Manchurian stage, as well as the power to seize control over Manchuria had been acquired by the Japanese manu military. As has been observed in the Review of International Affairs, the military conquest and occupation of Manchuria by the Japanese Army was the real foundation of the Japanese position in Manchuria in 1932; and the whole world was aware that this was the fact. The Japanese were apparently prepared to defy the world’s opinion and to risk the consequences of the world’s disapproval in order to keep their ill-gotten gains. Why, then, did they not simply proclaim, out of hand, the annexation of Manchuria to the Japanese Empire instead of persisting in a farce which nobody in the world was taking seriously? An outright annexation would hardly have been a grosser violation of Chinese sovereign rights in Manchuria than the denial of these rights which was involved in the erection and recognition of ‘ Manchukuo'. On the point of principle, the breach of international law, if any, was equally beyond condonation in whichever of the two alternative forms it was effected. And, on the point of fact, if it was a mere farce, then the Japanese insistence that it was sober earnest, was calculated to exasperate the public opinion of the world even more sorely than a cynical avowal on Japan’s part that she was doing what she was doing by sheer violence.

It is considered probable that it might be attributed in part to an anxiety to imitate Western behaviour—an anxiety which had become an idee fixe in Japanese minds since the beginning of the Meiji era. “A candid Western historian” it is said, “cannot ignore this probability when he remembers how painstaking and how literal the Japanese manner of imitating Western fashions was apt to be, and when he considers that the policy of constitutional humbug was just as prominent in the colonial history of the modern Western World as it had been in the domestic history of medieval Japan.”

“Was it not Western Imperialism that had coined the word 'protectorate’ as a euphemism for ‘annexation'? And had not this constitutional fiction served its Western inventors in good stead? Was not this the method by which the Government of the French Republic had stepped into the shoes of the Sultan of Morocco, and by which the British Crown had transferred the possession of vast tracts of land in East Africa from native African to adventitious European hands? And if the ex-victors in the General War of 1914-18 should protest that, since the War, they had experienced a conviction of sin and had replaced the tarnished word ‘protectorate' by the brand- new word ‘mandate', would not the Japanese be able to cite American and Russian, as well as German opinion in support of the view that this latest change of name had introduced a distinction without a difference?’

“Moreover a Japanese apologist might discover precedent for almost every use that Japan had made of ‘Manchukuo’ in Western post-war as well as pre-war practice. Conceivably, for example, it might be considered hypocritical on the part of the Japanese to have connived at the action of ‘ the Manchukuo Government’ in seizing the China Maritime Customs House at Dairen, and then to have disclaimed all responsibility for this breach of a Sinojapanese agreement on the ground that the problem did not concern Japan but was an issue solely between “Manchukuo” on the one hand and the Government of China and its Dairen Commissioner on the other. But if this incident was to be judged on the ‘practical’ basis of precedent and not by the merely ‘idealistic’ touchstone of Right-and-Wrong, was it not open to the Japanese to point out that they were here following, with almost pedantic exactitude, a precedent which had been set by the French in 1923-4 when they had engineered the fictitious ‘ Separatist Movement ' in the Rhineland in the hope of achieving through this instrument a breach of the Peace Treaty of Versailles which they preferred not to perpetrate with French hands? Though the Japanese failed to make the most of these Western precedents in stating their case for performing the farce of ‘ Manchukuo’, it may legitimately be conjectured that Western as well as Japanese precedents had in fact suggested, and commended, this line of policy to Japanese minds.”

“These considerations go far towards explaining ‘ Manchukuo ’. Yet, when all is said, it is difficult altogether to comprehend the state of mind in which a piece of make-believe is obstinately defended as being genuinely what it purports to be, long after its fraudulency has been conclusively exposed to the public eye. It can only be pointed out that this curious state of mind was at any rate not peculiar to the Japanese. It was also displayed, in this selfsame post-war age, by the French, when they protested, as we have recalled, that ‘the Separatist Movement’ in the Rhineland was a spontaneous expression of Rhinish aspirations with which the French Army of Occupation had nothing to do. And it was likewise displayed by the Russians, when they protested that the Government of the U. S. S. R. had nothing to do with the Third International. The state of mind which is illustrated in each of these instances must be regarded as one of those relics of an ‘archaic’ psychology which lingered on in the field of international relations and which constituted one of the most formidable obstacles to the progress of civilization in this particular sphere of social life.”

This is what the Surveyor of the International Affairs says in his Survey of the year 1932.

It may be noticed in this connection that the Japanese up to 1928 favoured the consolidation of the Chang power and discouraged its opponents by their policy. Thus, in 1925 they frustrated the revolt of Kuo Sung-lin by proclaiming a neutral zone along the S. M. R (see the Survey of 1925, Vol. 11, p. 346) and in 1928 they precluded a Nationalist invasion of Manchuria by declaring they would not allow the “Northern Expedition” to pass Shan-haikwan (see the Survey of 1928, p. 337). This policy kept the situation much more stable than it was elsewhere in China, quite apart from the abilities of the Changs, and the Japanese would probably have continued it had not Chang Junior gone over to the Nationalists in December 1928 and admitted Kuomintang committees, etc., into Manchuria.

In a sense “Manchukuo” is a restoration of the status quo ante 1928: that is, Manchurian autonomy with Japanese protection and no Kuomintang. Of course “Manchukuo” is much more of a Japanese protectorate than the pre-1928 regime ever was, but it is not so much of an innovation as it seems.

As regards the Lytton Commission ’ s findings on the point whether or not Manchukuo was a genuine expression of the general will of the Manchurian people, it may be pointed out that the commission relied mainly on correspondence from unnamed persons, all evidence given publicly being discounted owing to the presence of Japanese and the exposure of witnesses to intimidation. The sort of evidence on which the denial is based is certainly of an unsatisfactory nature.

The Lytton Commission ’ s statement that there never was any independence movement in Manchuria before the Japanese Army over-ran the country may not be quite accurate. It may be pointed out that Chang Tso-lin’s Government performed all the functions of a sovereign state, including the making of regular treaties with foreign powers (e. g., the Sino-Russian Agreement of 1924 made by Chang Tso-lin after he had explicitly declined to recognize the treaty previously made with Russia by the then internationally recognized Government of China) , and that Chang Hsueh-liang’s policy of submission to Nanking in return for powers in North China was strongly opposed by a party among his generals, notably by Yang Yu-ting, his father’s Chief of Staff, who was murdered by Chang for that reason. The Japanese claim that, with the forcible ejection of Chang, Manchuria merely reverted to its pre-1929 status, only that this was now regularized by an assertion of de jure sovereignty.

The evidence given before us cannot be said to be quite convincing on either side. I need not however pursue the matter further as in my opinion it has not been established that either the then Japanese Government or any of the accused had any PRECONCEIVED DESIGN of establishing a puppet government in Manchuria. Whatever be the origin of the Manchurian Incident it can be said without much hesitation that it has not been established beyond reasonable doubt that any of the accused before us had any hand in the matter.

It must be remembered that, according to the case of the prosecution itself, the then Government of Japan was not yet in the conspiracy and therefore any action of that government cannot be said to have been in execution of the alleged conspiracy.

We may notice here the several cabinets that came into office since the fall of the TANAKA Cabinet on July 1929. The TANAKA Cabinet was succeeded by the HAMAGUCHI Cabinet on July 2, 1929. In this Cabinet Baron SHIDEHARA was the Foreign Minister and General UGAKI, and then, General ABE, were the War Ministers. None of them are alleged by the prosecution to have been in the conspiracy. The HAMAGUCHI Cabinet was succeeded by the WAKATSUKI Cabinet on the 14th April 1931 with Baron SHIDEHARA as Foreign Minister, and accused MINAMI was War Minister. Excepting MIN AMI none else of this Cabinet is alleged to have anything to do with the conspiracy. This Cabinet was succeeded by INUKAI Cabinet on 13 December 1931 with the accused ARAKI as War Minister. Excepting ARAKI none else of this Cabinet also is alleged to have been in the conspiracy. On 26 May 1932 this was followed by the SAITO Cabinet. Count UCHIDA was its Foreign Minister and accused ARAKI continued as War Minister. Excepting ARAKI again none else of this Cabinet too is alleged to have been connected with the conspiracy. Of course, when UCHIDA was later on succeeded by accused HIROTA as Foreign Minister another conspirator in his personality entered the Cabinet. This SAITO Cabinet continued till 8 July 1934 and was succeeded by OKADA Cabinet. Next came the HIROTA Cabinet on 9 March 1936. We need not at this stage proceed further than this. All that we should remember is that till the accession of the HIROTA Cabinet on 9 March 1936, the government as such is not alleged to have been in the conspiracy. The bearing on the question of conspiracy of any government pronouncement or action during this period must be determined keeping in view this case of the prosecution.

The Japanese government’s decision to accord recognition to Manchukuo at some future date which was not yet fixed was announced by the then Japanese Foreign Minister, Count UCHIDA on the 18th July 1932. This intimation was repeated by him in a speech which he delivered before the Diet at Tokyo on the 25th August in which he went so far as to say that the Japanese Government regarded the recognition of Manchukuo as being the sole effective means of solving the Manchurian problem. Count UCHIDA elucidated this problem in his speech and said: “With regard to the question of finding a solution for the Manchurian problem, the Japanese Government attach the greatest importance to the following two points:

“First, that, in seeking a satisfactory solution we should aim at the fulfilment of the legitimate aspirations of the Manchurian people, at adequate guarantees for the rights and interests of Japan, at prevention—in order to make Manchuria a safe place to live in, alike for Manchurians and foreigners—of any recrudescence of erstwhile anti-foreign policy and movements, and, finally, at bringing not only stability to Manchuria, but permanent peace to the Far East. Second, that such solution should be effected by rejecting all sentimental propositions and abstract theories and arrived at upon the solid basis of realities of the situation.”

On the 13th September 1932, at Tokyo, the draft text of a protocol to be signed by representatives of Japan and Manchukuo was approved by the then Japanese Privy Council in the presence of Emperor of Japan and on the 15th this instrument was duly signed.

According to the case made by the prosecution we cannot take the above as acts of the conspirators or as giving any retrospectant indication of any conspiracy.
It was suggested that the reason why, instead of annexing Manchuria to the Empire of Japan, Japan set up a puppet government there, is that thereby Japan thought she would succeed in evading her obligation under the Washington Treaty.

I have already indicated where the Treaty stood at the relevant time and how it was being respected by the signatories thereof.

The question before us, however, is not what the legal position actually was, but how the persons concerned understood that legal position to be. The evidence before us shows that the then members of the Japanese Government felt some difficulty in recognizing Manchukuo as an independent state in view of the Washington Treaty, and it may be that they preferred to set up a puppet government in view of their obligation under the treaty as understood by them. Whatever that be, the then Government of Japan, which was showing its nervousness over the treaty obligation, and was trying to find out a means to avoid any violation of that obligation, was not yet in the alleged conspiracy, and, therefore, its deliberations, policies, and actions are, strictly speaking, irrelevant for our present purposes.

The picture of the economic domination of Manchuria by Japan as delineated by the prosecution is best given in the language of its summation. The prosecution says: “As early as April 11, 1932, immediately after the institution of the new government, the Japanese Cabinet decided that in order to solidify the foundation of the state by establishing a financial and economic policy to enhance international confidence and to realize a single economic unit of Japan and Manchukuo, the new state should employ Japanese as authoritative advisers on economic problems and should appoint Japanese officials to e- conomicposts, (Ex, 223, R. P. 2, 826). The same decision reserved real power of management over rail-roads and other means of transportation for Japan (Ex. 223, R. P. 2,826-7). Acknowledging that Japan in November 1931 had decided to have the Japanese Transportation Company open regular air routes on the pretext of military need to establish a foundation for acquiring aviation rights in Manchuria and Mongolia, the SAITO Cabinet, in August 1932, decided that it was important that this service become a permanent business organization to be managed so as to contribute to the execution of Japan’s aviation policy, to the development of industry and to the acquisition of aviation rights in China proper (Ex. 225, R. P. 2,831-2). The business was to be under the leadership and supervision of Japan through a joint Japan- Manchukuo company in which Japanese would hold substantial leadership and supervision (Ex. 225, R. P. 2, 832). Subsidies were to be given by the Manchukuo government and the Railway. (Ex. 225, R.P. 2,833). In connection with the signing of the Protocol, three of the supplementary agreements dealt with Japanese rights in transportation, aviation and mining (Ex. 241, R.P. 2,980-1).

“The fact that these early steps were not isolated phenomena of grabbing but were part of a complete plan to dominate Manchuria entirely becomes established even more strongly when Japan’s actions subsequent to the recognition of Manchukuo are considered. In the first guiding plan given by the Cabinet to the Kwantung Army on November 3, 1932, it was stated that, economically, co-prosperity and co-existence should be the basic principle, and that the system was to be an economic bloc between Japan and Manchuria (Ex. 230, R. P. 2,907). The idea of a “fit industry for suitable locality” was to be adopted so that each member of the bloc might co-ordinate its industries with the other and abolish customs barriers with the aim of acquiring self sufficiency and making an advance toward worldwide industry. (Ex. 230, R.P. 2,908). Following the adoption of this policy, the Cabinet decided a policy for Manchurian wire, wireless, telegraph, telephone and broadcasting enterprises (Ex. 231, R.P. 2,919). This company was to be a joint enterprise under the joint control of the government and military of both nations, but the Manchurian military could not inspect or make demands without previous approval of the Japanese military, and in case of dispute between the supervising authorities, the view of the Japanese authorities was to prevail., (Ex. 231, R. P. 2, 920-4).

In the guiding policy of August 8, 1933, it was provided that Manchuria ’ s economic aim lay in unification of Japanese and Manchurian economics so as to securely establish Japan’s expansion of economic powers to the whole world and at the same time to strengthen Manchuria economically (Ex. 233, R.P. 2,930). Japan’s real aggressive designs cannot be expressed any better than as stated in this instrument. Japan was to come first, then Manchuria, and it is not at all clear that even the economic strengthening of Manchukuo, the secondary consideration, was to be for the benefit of the Manchukuoans. This document also stated that certain industries were restricted by demands of Japan’s national defense but others were to be open to all (Ex. 233, R.P. 2,930). It will be recalled that in this policy decision all important matters were reserved to the Japanese Cabinet.

“On March 20, 1934, the Cabinet decided on a Japanese-Manchukuo Economic administration policy. The fundamental concept was the securing
of a base for Japan’s worldwide economic expansion and the strengthening of Manchukuo’s economic powers (Ex. 236, R. P. 2, 939-40). Basic industries were to be restricted by the demands of Japan ’ s national defense and such enterprises would be operated by special companies, which were to hold the dominant position and were to be directly or indirectly under the protection and supervision of Japan (Ex. 236, R.P. 2,940). The industries to be encouraged were, inter alia, light metal, petroleum, liquid fuel, automobile and mining industries (Ex. 236, R. P. 2, 941-2) .

“On July 17, 1935, Japan and Manchukuo established a Joint Economic Committee which was to advise the two governments on important matters of economics and on the control and inspection of the business of joint companies (Ex. 851, R. P. 8, 434-5). The committee was to have eight members, four from each country (Ex. 850, R.P. 8,422). The committee was limited in its powers since matters important to the economies of both governments, but within Japan’s power, were without the province of the committee, and such matters were to be made into a unilateral contract binding only upon Manchukuo (Ex. 850, R. P. 8, 424). It was pointed out in the Privy Council, as a secret matter, that the agreement in fact only bound Japan (Ex. 850, R.P. 8,425). However, even the limited powers reserved to the Committee disturbed one of the councillors because of the equal division of members. His fears were quieted by the accused HIROTA’s pointing out that one of the Manchukuoan members, the Chief of the General Affairs Board, was a Japanese whose primary duty was to see that there would be no conflict, and in case the Manchukuoan members should scheme against Japan, the Chief would take proper measures after considering the interests of both countries, (Ex. 850, R.P. 8,429-30). In November 1935, the yen bloc was established and Manchukuo’s currency was taken off silver and stabilized at par with the Japanese yen. (R.P. 8, 436) .
The purpose of all this control of Manchukuo s economy became clear in 1937 when the plans disclosed that its economy was being integrated with that of Japan for war purposes. In the Five Year Plan of Important War Industries of the War Ministry of May 29, 1937, it was planned that the requisite industries should be pushed to the continent according to the principle of right work in the right place with Japan and Manchuria being treated as a single sphere (Ex. 842, Pt. 1, R.P. 8,437). In the Outline of the Five Year Plan for the Production of War Materials of June 23, 1937, the two primary aims of which were to perfect war preparations and to realize the Major Industries Plan (Ex. 841, R. P. 8, 261), it was provided that in the Five Year Industrial Plan for Manchukuo guidance would be given to the war industries (Ex. 841, R.P. 8,439-40). Efforts were to be made to overcome the factors impending the speedy construction of war industries in Manchukuo. (Ex. 841, R.P. 8,441).

“In January 1937, Manchukuo promulgated a Five Year Industrial Plan (Ex. 446, R. P. 5, 071), a plan in the drafting of which the accused HOSHINO admitted playing a large part (Ex. 453, R. P. 5, 126). This plan, which provided for the creation and expansion of every type of industry, stated that emphasis was to be placed on opening up Manchukuo ’ s national resources necessary in time of emergency and that it was the desire to develop various types of industry to make Manchukuo self-supporting and to meet Japan’s shortages (Ex. 446, R. P. 5,071). Under the plan, the production of agricultural products required as military stores was to be increased (Ex. 446, R. P. 5, 072). In May 1937, Manchukuo enacted a law controlling important industries in which it required those who desired to engage in any important industry, including all those vital to war, to obtain government consent, and those already in such businesses were required to get government permission before making any change. (Ex. 444-A, R. P. 5,048-51). By May 1937, all important industries were effectively in the hands of Japan or its dominated puppet government under a plan having war as its principal aim.

“However, even the tremendous accumulation of power was not sufficient for Japan, and on October 22, 1937, the First KONOE Cabinet decided to set up one heavy industry company to establish and develop heavy industry in Manchukuo. One half of the capital was to come from Munchukuo and the other half from Japanese private interests, designated as the Nissan interests in the decision. The decision also provided for Japanese management and designated AIKAWA Gisuke, as manager (Ex. 239, R. P. 2,963-6). Pursuant to this decision, Japan and Manchukuo entered into an economic agreement for the establishment of the Manchurian Heavy Industry Development Corporation (Ex. 840, R. P. 8,472). While ostensibly a Manchukuo Company, in view of the economic agreement with Japan, it was really a national policy” company of Japan (Ex. 840, R. P. 8, 472). The company was to be under joint management and its shares could be held only by the two governments or their nationals. The President and Directors were to be appointed by the two governments (Ex. 438, R. P. 5,018-20).”

For my present purpose I do not see much significance in the charges of economic aggression in Manchuria so much dwelt upon by the prosecution in this connection. Placed at its highest, the evidence only discloses that after the founding of the State of Manchukuo, Japanese attention was directed to the exploitation of transportation and communication facilities, and increasing emphasis was laid on developing natural resources and heavy industries. But all this was done by the then Japanese Government which, according to the case of the prosecution itself, was not yet in the alleged conspiracy. In its final summation the prosecution puts the case thus:  

"From the beginning the original conspirators in the army had one over-all plan which they continuously put into practice. They were strong enough from the very beginning to force the government to acquiesce and participate with them in every individual act. Failure to participate and acquiesce brought the downfall of the recalcitrant cabinet and the installation of a new one which would participate at least to the extent of the portion of the plan then being put into effect. Finally in 1936 the conspirators became powerful enough to obtain as the price for allowing a government to be formed, the complete participation by the government in the conspiracy, and the common plan became the national policy of Japan.”

So, the only matter that will be of any importance here is to enquire if there is any evidence to show that what the Government of Japan was doing at this stage, was being done by it at the instance of the alleged conspirators. The question is not whether the action taken by the Government was justifiable, but whether by the evidence adduced before us it has in any way been connected with the alleged conspirators so as to make it yield some retrospectant indication of the original conspiracy. There is absolutely nothing in the evidence so to connect the actions of the Japanese Government with the alleged conspirators.

The evidence placed at its highest only indicates a certain policy of exploitation of the Manchurian resources adopted by the then Japanese Government. I have already indicated how many diverse factors of diverse origin might have operated in moulding this policy. None of these factors could be said to be the product of any conspiracy. Taking with this the fact that even according to the prosecution case the alleged conspiracy lay outside the then Government of Japan, I do not see how this evidence of economic exploitation can in any way advance the prosecution case of conspiracy.

The plans of industrial development since 1937 and their connection with any design for aggressive war will be examined in detail in connection with the case relating to general preparation for war. It would suffice for my present purpose to say here that I could not connect these plans and industrial developments with any aggressive purpose. At any rate they were subsequent developments having nothing to do with any conspiracy of the kind alleged in the indictment.

Coming to the expansion of control beyond Manchuria the prosecution gave us a detailed account of the methods which, according to the prosecution, Japan adopted in obtaining control of North China prior to 7 July 1937, the date of the Marco Polo Bridge Incident. In this connection the prosecution in its summation laid emphasis on the following matters:

1.            Under the terms of the Tangku Truce of May 31, 1933, a demilitarized area was set up in North-eastern Hopei Province, north and east of the important cities of Peiping and Tientsin, and the Chinese army was withdrawn to the west and south of the demilitarized area.
2.            The demilitarized area and adjacent territory which together constituted the five northern provinces of China proper, were of the utmost importance, strategically, politically and economically.
3.            The Province of Ghahar completely bordered Jehol which had been incorporated into Manchukuo on the west, while Hopei bordered it on the South (Ex. 220, p. 2,751).
4.            By April of 1935, it had been decided to set up this important region as an autonomous area in furtherance of their plans for the further disintegration of China and the destruction of the Chinese Nationalist Government, an essential prerequisite for the successful achievement of the aims of the conspiracy, (p. 2, 026—Tanaka Ryukichi).
5.            The authors of the movement were the accused MINAMI, Commander of the Kwantung Army, and the accused UMEZU, Commander of the North China Army. The work was divided between the two armies. The Army in the North China took up the case of the five Provinces and the Kwantung Army took up Inner Mongolia (Tanaka Ryukichi, pp. 2,033-34).
6.            The purpose was twofold:
(a) to create an autonomous regime in Mongolia, and (b) to create a regime in North China outside the Mongolia area.
7.            (a) The reasons for establishing Mongolian regime were to prevent infiltration of Soviet-controlled Outer Mongolian influence and to set up an independent state.
(b) The reason for establishing the North China regime were to separate the five provinces from Nanking, to set them up as an autonomous area in close relationship with Manchukuo under Japan’s leadership and to reduce the power and influence of the Nanking Government (Tanaka Ryukichi, pp. 2,026-27).
8.            The method adopted was by creating incidents as pretexts for making demands: At this particular point, the conspirators found it extremely difficult to find incidents—At the time relations between China and Japan were rather good.
(a)          In the middle of May 1935 two Chinese were killed in the Japanese concession at Tientsin—UMEZU made certain demands on this pretext—For the sake of peace, China agreed to compromise, and on June 10, 1935, General HO accepted the demands thus bringing about the HO-UMEZU Agreement (Ex. 2,491, R.P. 20,787-88).
(b)          In June 1935, four Japanese Army officers were alleged to have been insulted while motoring through the Chang-Pei district—MINAMI with the object of enlarging the scope of the Tangku Truce, under instruction from Tokyo set the accused DOHIHARA of his staff in the Kwantung Army to Tientsin to negotiate on the matter which had arisen in the area in which DOHIHARA was in charge of information (Ex. 2,489, R.P. 20,755). On June 27, 1935 an agreement was reached by DOHIHARA and Ching settling the matter (Ex. 2,489, R.P. 20, 755).
9.            About May 29, UMEZU came to Hsinking and there met MINAMI and the War Minister HAYASHI.
10.          In September 1935, DOHIHARA was sent from the Kwantung Army by MINAMI to Peiping to foment the autonomy movement (TANAKA Ryukichi, R.P. 2, 034, 2,124).
(a)          Anti-Communism was chosen as a slogan. 
(b)          DOHLHARA’ s First plan was one of inducement which failed. (TANAKA Ryukichi, p. 2,029).
(c)           The Japanese then induced by threat and bribery some autonomous movement and on the 25th November, the East Hopei Anti-Comintern Autonomous Council was created.
11.          In March 1933, the Inner Mongolia Autonomous Council had been set up under Prince Teh. Since Nanking had failed to support the council economically and the Governor of Suiyuan was opposed to the council because of Teh’s desire to establish a unified Mongolian state comprising both Inner and Outer Mongolia, the situation was therefore ripe for the Japanese to make overtures to Teh. Accordingly, in April or May 1935, according to the testimony of TANAKA Ryukichi and MINAMI, MINAMI sent Colonel ISHIMOTO and TANAKA on a mission to Teh. While MINAMI stated he sent these emissaries for liaison purposes to observe conditions and admitted only that he had told them it would be a good thing to establish a liaison agency, TANAKA testified that they were sent for the purpose of having the Inner Mongolian Autonomous Council form a close relation with Japan to establish an autonomous government under Teh, which would become an independent government in line with the Kwantung Army anti-Soviet policy. While Teh at first did not agree, in August 1935, he promised close co-operation wth MINAMI, and the Kwantung Army gave him financial aid. In November 1935, DOHIHARA and the HOPEI-Chahar regime agreed that Teh should be in control of that regime, and on February 11, 1936, the Inner Mongolia Autonomous Council was transferred to West Sunito, where it was joined by Japanese civilians who served as advisers.
The observations in the above extracts from the prosecution summation ascribing sinister significance to the events happening during this period are mainly based on the evidence of TANAKA Ryukichi. I have already given my impression of this witness.
The defense contended that the Autonomous movement which began and was promoted in North China sometime before the Marco Polo Bridge Incident had nothing to do with the China Incident. After the making of Tangku Agreement in May 1933, it was the national government of China itself which established the North China Political Committee governing the five districts of Hupei, Chahar, Shantung, Shanshi and Suiyuan and the two cities Peiping and Tientsin on the 17th June the same year. It appointed Huangfu to be the head of the Committee. In 1935, the Autonomous movement of the farmers gained momentum and November of the same year, the Eastern Hupei Anti- Communist Autonomous Committee was established with Yinjuken as its Chief. Though this was strictly a local Chinese affair, the Chinese Government seized upon it and used it for anti-Japanese propaganda. 
It is beyond my purpose to enter upon the merits or demerits of the respective cases of the parties in this connection. All that I need point out is that I find it difficult to ascribe every event that was happening during this period to the over-all conspiracy alleged in the indictment. Many of the events might have been engineered. Many of the Japanese might have had a hand in engineering such events. Yet there is hardly any evidence on record which would justify us to ascribe all these to an over-all conspiracy of the kind alleged by the prosecution.
The most attractive way of presenting the happenings in the appearance of a continuous chain of sinister significance is as follows:
1. After Japan’s occupation of Manchuria and Jehol was completed with the signing of the Tangku Truce in the spring of 1933, Jehol became the frontier of the newly formed puppet state of Manchukuo.
(a) If Japan was to advance further into China from the territory she had already occupied, her advance would be from Jehol westwards into Chahar or southwards into Hopei.
(6) This is how the Hopei incident of May 1935 and the North Chahar incident of June 1935 would be explained.
2- On the 17th of April 1934 the Japanese Foreign Office issued the “Amau Statement ” warning the powers who subscribed to the Nine-Power Pact that the Japanese government would not tolerate any interference with her plans in China.
(a)          HIROTA explained to the American Ambassador Grew that this “ Amau Statement ” had been issued without his approval or knowledge.
(b) The fact, however, that this statement truly represented Japan’s policy towards China at that time became clear since on the very day after HIROTA made his disclaimer to Ambassador Grew, he circulated to the Japanese embassies in the United States, Great Britain and China and to the Japanese consulate general at Nanking a telegram which repeated Japan’s claim to a special position in regard to China, the claim which had been made in the Amau statement.
(c)           The telegram, dated 26 April 1934, states inter alia: “Japan cannot remain indifferent to any one’s taking action under any pretext, which is prejudicial to the maintenance of law and order in East Asia for which she, if only in view of her geographical position, has the most vital concern.”
3.            (a) Then followed the May incident of 1935 in the Hopei province and the June incident of 1935 in the North Chahar province.
(b) Then comes the establishment of the Inner Mongolia autonomous regime. On the strength of the evidence of Tanaka Ryukichi, this movement is connected with the alleged conspiracy.
4.            We are then given what is called a propaganda plan of the Kwan- tung Army and it is said that this plan is most significant as to Japanese intentions towards North China. It was dispatched by the Vice-Chief of Staff of the Kwantung Army to the Vice-Minister of War on 9 December, 1935.
(a) Certain passages in it are specially quoted as being of much significance.
5.            Then we are told that when the Japanese armies in China were formulating plans in anticipation of military operations in North China, the Japanese Cabinet was working on a program of subjugating China through diplomatic measures.
(a) On August 5, 1935, Foreign Minister HIROTA sent to the diplomatic and consular officials in China a plan prepared on his instructions by the Bureau of East Asiatic Affairs of the Foreign Office, as a result of the re-investigation of Japan’s policy towards China which had been made by that Bureau in collaboration with the Army and Navy authorities.
(b) Three general principles are stated in the plan as follows:
“(i) China should carry out strict control over all anti- Japanese speeches and activities, and both Japan and China should make efforts to promote friendship and co-operation on the basis of the principles of mutual respect of independence, co-operation and mutual assistance, and should work for the development of relations between Manchukuo and China.
“ (ii) While the Ultimate aim of development of relations was that China would give formal recognition to Manchukuo and that Japan, Manchukuo, and China would conclude an agreement to regulate the new relations among the three countries, China for the time being should not deny the fact of Manchukuo ’ s existence, at least in North China and in the Chahar district which bordered the Manchukuo territory and should enter into actual relations of interdependence and co-operation with Manchukuo in the economic and cultural fields;
“(Hi) Japan and China should co-operate in Ghahar and other districts bordering Outer Mongolia, with a view to removing the communist menace.”
(c) On 21 January 1936 the three principles were made known to the public through HIROTA’s address to the Diet.
6.            Then followed the February Incident in Japan. The Incident occurred on 26 February 1936. It was an outburst of the Army’s resentment against the Government under the premiership of OKADA, which was known as a Navy cabinet and was reputed to be opposed to the Army ’ s policy of expansion on the continent of Asia by military force.
(a) The purpose of this Incident was to replace the OKADA Cabinet by another with stronger policies which would fit into the policy of the Army for further expansion on the continent. OKADA testified that he supposed the Incident was a spontaneous outburst of resentment on the part of a group of young officers against the Government * s sympathy with the ambition of the military.
(b)          The OKADA Cabinet resigned on 8 March 1936 and HIROTA succeeded as premier.
(c)           Instead of taking measures to enforce military discipline and eradicate the influence of the Army in political affairs, HIROTA yielded to Army demands as to the choice of some of his ministers.
7.            On 30 June 1936 the War and Navy ministers agreed upon a basis of national policy. The fundamental policy was to consist in advancing toward and developing the South Seas as well as obtaining a firm position in the East Oriental Continent for stabilizing Japan’s national defense.
(а)          The principles stated were:
(i) Japan must strive to correct the aggressive policies of the great powers and to realize the spirit of the Imperial way by a consistent policy of overseas expansion;
(ii) Japan must complete her national defense and armament to secure the position of the empire as the stabilizing power in East Asia;
(Hi) Japan expects the sound development of Manchukuo and thus hopes to stabilize Japanese-Manchukuoan national defense in order to promote economic development. Japan intends to get rid of the menace of the U.S.S.R.; to prepare against Britain and the United States and to bring about close collaboration between Japan, Manchukuo and China; in the execution of this continental policy, Japan must pay due attention to friendly relations with other powers; Japan plans to promote her national and economic development in the South Seas, and without rousing other powers will attempt to extend her strength by moderate and peaceful measures. Thus, with the establishment of Manchukuo, Japan may expect full development of her national resources and develop her national defense.
(б)          These plans were adopted on 11 August 1936 as the basic principles of national policy by the Five-Ministers Conference.
8.            While the HIROTA Cabinet was formulating its expansionist foreign policy under the name of national defense, the Kwantung Army had its attention directed toward Mongolia in the north. Earlier, on 28 March 1936, ITAGAKI, the then Chief of Staff of the Kwantung Army, said:

(a)          “Outer Mongolia is of importance from the point of view of Japanese-Manchukuoan influence today, because it is the flank defense of the Siberian railroad, which is a connecting line between Soviet territory in the Far East and Europe. If Outer Mongolia be combined with Japan and Manchukuo, Soviet territory in the Far East will fall into a very dangerous condition and it is possible that the influence of the Soviet Union in the Far East might be removed without fighting. Therefore, the Army aims to extend Japanese- Manchurian power into Outer Mongolia by all means at hand.”
(b) In connection with Inner Mongolia, he said:

‘Western Inner Mongolia and the zone to the west of these are of great value for executing the continental policy ofjapan. Should the said zone be placed in the sphere of Japanese and Manchurian influence, it means that will be a base for pacification of their brothers of the same race in Outer Mongolia. Moreover, that the influence of Soviet Russia which comes from Hainkiang, as well as a land link between Soviet Russia and China will be blocked. . . . From the above standpoint, the Imperial Army has been furthering its work with regard to Western Inner Mongolia for several years. The Imperial Army is resolved to further its work, overcoming all sorts of obstacles.”

(c)           As a result of the adoption of a positive Mongolian policy by Japan, the autonomous movement in Inner Mongolia made steady progress. The so-called ‘state founding conference’ was held from 21-26 April 1936.
9.            On 11 August 1936 the second administrative policy toward North China was decided upon by the appropriate ministries in the HI- ROTA Cabinet.
(a) The main purpose of the policy was stated to be:
(i)            to assist the people in North China to procure perfect independence in administration,
(ii)           to set up an anti-communist, pro-Japanese and pro-Manchukuoan area,
(in) to secure necessary materials for Japan’s national defense and to improve the facilities of transportation against the possible invasion of Soviet Russia, thus making North China a base for co-operation between Japan, Manchukuo and China.
(b) The five provinces in North China should finally be put under self-government.
10.          Subsequently, on 20 February 1937, the third administrative policy toward North China was decided upon by the appropriate ministry of the HAYASHI Cabinet. There was no substantial change in contents.
11.          On 18 September 1936 an incident occurred when a company of Japanese soldiers carried out maneuvers in Fengtai. As they passed through the garrison line of the Chinese troops there, the Chinese patrols attempted to halt them and a clash ensued. Although it was immediately settled, the Japanese used this incident as a pretext for re-inforcement and occupied Fengtai.
12.          On 20 January 1937 the Seiyukai party issued a declaration attacking the HIROTA Cabinet on the ground inter alia that its members were too much influenced by the dogmatic prejudices of the bureaucrats and of the military, and that the wish of the military to interfere in every sphere was a threat to constitutional government in Japan.
(a)          On 22 January 1937 War Minister TERAUCHI tendered his resignation because, as he stated, the views on the prevailing situation held by the political party, which had some members sitting as cabinet members, differed fundamentally from the Army’s. Under the then existing situation, there was no hope of getting a new war minister who could in any manner reconcile to extremist policy of the Army without party politics, and the HIROTA Cabinet had to resign.
(b) Upon the resignation of the HIROTA Cabinet, UGAKI on 24 January 1937 was given the Imperial mandate to form a new cabinet. UGAKI was not regarded with favour by the Army. He failed to form a cabinet. The HAYASHI Cabinet was formed on 2 February 1937. The general policy of the government was not changed.
13.          On 16 April 1937 the plan for guiding North China was decided on by the Foreign, Finance, War and Navy Ministers. The essence of the guidance of North China was stated to be to make the said area virtually a firm anti-communistic, pro-Japanese region and was to contribute to the acquisition of communicational facilities, thus partly preparing against the third threat and partly forming a foundation realizing the unity of mutual aid of Japan, Manchukuo and China.
14.          After the fall of the HAYASHI Cabinet, Prince KONOYE assumed the premiership on 4 June 1937, with HIROTA as Foreign Minister and KAYA as Finance Minister.
15.          TOJO, the then Chief of Staff of the Kwantung Army, sent a telegram on 9 June 1937 to the Army General Staff with the suggestion that judging from the present situation in China from the
point of view of military preparations against Soviet Russia, Japan should deliver a blow first of all upon the Chinese Central Government to get rid of the menace at the back if Japan’s military power permitted it.
16.          The Marco Polo Bridge Incident took place on 7th July 1937.

The Amau Statement is Exhibit 935 in this case. Of course, the statement itself did not say “that the Japanese Government would not tolerate any interference with her plan in China ”. This is only how the meaning and import of that statement is presented to us, The entire statement stands thus:

“Owing to the special position of Japan in her relations with China, her views and attitude respecting matters that concern China, may not agree in every point with those of foreign nations; but it must be realized that Japan is called upon to exert the utmost effort in carrying out her mission and in fulfil- ing her special responsibilities in East Asia.

“Japan has been compelled to withdraw from the League of Nations because of their failure to agree in their opinions on the fundamental principles of preserving peace in East Asia. Although Japan’s attitude toward China may at times differ from that of foreign countries, such difference cannot be evaded, owing to Japan’s position and mission.

“It goes without saying that Japan at all times is endeavouring to maintain and promote her friendly relations with foreign nations, but at the same time we consider it only natural that, to keep peace and order in East Asia, we must even act alone on our own responsibility and it is our duty to perform it. At the same time, there is no country but China which is in a position to share with Japan the responsibility for the maintenance of peace in East Asia. Accordingly, unification of China, preservation of her territorial integrity, as well as restoration of order in that country, are most ardently desired by Japan. History shows that these can be attained through no other means than the awakening and the voluntary efforts of China herself. We oppose therefore any attempt on the part of China to avail herself of the influence of any other country in order to resist Japan. We also oppose any action taken by China, calculated to play one power against another. Any joint operations undertaken by foreign powers even in the name of technical or financial assistance at this particular moment after the Manchurian and Shanghai Incidents are bound to acquire political significance. Undertakings of such nature, if carried through to the end, must give rise to complications that might eventually necessitate discussion of problems like fixing spheres of influence or even international control or division of China, which would be the greatest possible misfortune for China and at the same time would have the most serious repercussion upon Japan and East Asia. Japan therefore must object to such undertakings as a matter of principle, although she will not find it necessary to interfere with any foreign country negotiating individually with China on questions of finance or trade, as long as such negotiations benefit China and are not detrimental to the maintenance of peace in East Asia.

“However, supplying China with war planes, building aerodromes in China and detailing military instructors or military advisers to China or con-
tracting a loan to provide funds for political uses, would obviously tend to alienate the friendly relations between Japan and China and other countries and to disturb peace and order in East Asia. Japan will oppose such projects.

“The foregoing attitude of Japan should be clear from the policies she has pursued in the past. But, on account of the fact that positive movements for joint action in China by foreign powers under one pretext or another are reported to be on foot, it is deemed not inappropriate to reiterate her policy at this time.”

In order to appreciate the occasion for this statement, it will be pertinent just to notice a few of the Western activities of the time in China which were the ostensible cause of this utterance. These activities consisted of proposals of loans to China, the sale of aeronautical equipment, the engagement of military experts and advisors, and the technical assistance supplied by the League of Nations experts who were attached to the Nanking Government.

As regards financial operations, newspaper reports had appeared, a short time before, concerning a scheme of Sino-foreign co-operation, through the medium of a financing corporation, for helping economic developments. The scheme had been elaborated by the Chinese government with the help of Monsieur Jean Monnet, a French citizen who had been Deputy Secretary General of the League of Nations in the early days of its existence. A message from Shanghai to the New York Times had represented this corporation as deliberately designed to counteract the growing Japanese dominance in the fields of commerce and investment and as a devise to circumvent the International Banking Consortium Agreement, which assured to Japan the option of participating in loans granted to China. Simultaneously a report emanating from Moscow had announced that a loan from an international banking group was actually impending.

The American wheat loan of the previous year was another financial arrangement which seems to have been objectionable to Japan. The ground of objection was that funds derived from the sale of the wheat had been used by the Chinese government to purchase armaments.

Military assistance to China furnished a more substantial ground for Japanese protests. The Nanking government, in their efforts to create an air force, had not only entered into large purchases of aeronautical equipment, but had also engaged the services of a considerable number of foreign experts and instructors. The United States had provided China with aircraft, including as many as seventy fighting planes as well as other machine for observation, bombing and training. The Curtis-Wright Company had, earlier in the year, contracted to erect an airplane factory to be operated with the help of American engineers. Furthermore, it was with American assistance that a large aviation base had been set up at Hangchow with a school for military pilots attached—a retired Colonel of the United States Air Corps acting as superintendent.

Germany had also provided China with military advisors, including not a few eminent senior officers of the old imperial army; and in April 1934 a
former head of the Reichswehr succeeded to the appointment of chief military advisor to the government at Nanking.

Meanwhile, the work of the League of Nations technical co-operation with China reached an important stage in the month of April 1934. A major part of the experts’ work had been devoted, to the development of communications in China, a matter which might be assumed to possess a particular interest in Japanese eyes owing to its military significance. It may also be noticed that the technical agent of the League council, Dr. Rajchman, had acquired in Japan a reputation of being antagonistic to that country and of having engaged in political activities in China in a manner detrimental to Japanese interests.

Such were some at least of the foreign activities in China, which provided the occasion of the Japanese pronouncements of policy in the month of April 1934.
I would examine this Amau statement later in connection with the case of further expansion of the conspiracy into the rest of East Asia. That statement, no doubt, announced something about the special position of Japan in her relations with China. But such a claim was not unprecedented in international life. The assertion that a state may deem it proper as well as wise to act alone on its own responsibility in relation to the conduct of other powers of other continents towards areas and countries in a relative proximity to itself finds obvious precedent in the conduct of the United States in pursuance of the Monroe Doctrine.

On grounds of self-defense, the United States has for a long period asserted the right to oppose the acquisition by any non-American power of any fresh territorial control over any American soil by any process. The claim involved in the Monroe Doctrine is grounded on self-defense. A sense of its own defensive requirements prevents any admission by the United States that such an assertion constitutes unreasonable interference with the political independence of an American state. I do not see why a similar Japanese claim should be denied this defensive character and be characterized as aggressive.

That territorial propinquity creates special relations between countries was recognized even in respect of Japan’s relation with China as far back as November 1917 when the Lansing-Ishii exchange of notes declared this. The Lansing-Ishii Agreement no doubt was terminated through an exchange of notes after the Washington Treaty. It may have thus ceased to be operative as a compact. Nevertheless, the principle remains that territorial propinquity creates a special relation between countries. It is a principle acted upon in international life.

As I have already pointed out, the foreign policy of a country may not be determined by one or two simple factors. I have already referred to several complex factors entering into the formation of Japan’s China policy. Japan’s interest in China, China ’ s internal conditions endangering foreign interests there, China's increasing inter-relations with the U. S. S. R (a state not a party to the Nine-Power Treaty), were a few more additional factors.

There were a few more factors introduced by Japan1 s own action in Manchuria. Whatever may be the responsibility for that action, it was not possible for any subsequent statesmen of Japan shouldering responsibility for the management of her affairs to ignore these factors in adopting any future policy.

Since the signing of the Tangku Truce in the spring of 1933, the general relations between Japan and China were one of increasing amity. In both countries more and more conciliatory notes appeared in the public utterances of leading politicians. The Chinese Government gave evidence of a willingness to respond to Tokyo ’ s demands for effective control of anti-Japanese agitation. The Japanese Government, for their part, made a gesture of good will and paid a compliment to China by elevating their diplomatic mission to the rank of embassy. The example was followed in the course of the next three months by Great Britain, Germany and the U.S.A.

As I shall show elsewhere, HIROTA s was indeed a co-operative policy and it was proceeding smoothly. His method was that of a steady and patient persuasion and of remaining on terms of at least outwardly friendly intercourse with the Government of Nanking.

Any deterioration in the Sino-Japanese relations thereafter had no such connection with the earlier events as would entitle us to connect any subsequent events with the earlier incidents as constituting parts of one entire chain. By the end of the year Japan had to face an unprecedented financial crisis, and in comparison with other countries her finance was in the most alarming state. Her financial predicament lent much emphasis to the importance of maintaining, if not increasing, her export trade. The increasing tendency throughout the world to raise trade barriers and in many cases—as in the British colonies and the Netherlands East Indies—specifically to limit the import of Japanese manufactures, gave serious cause for concern.

Japan was counting upon a friendly co-operation of China in the field of economics. It may be that in view of the world situation Japan was desiring that China should facilitate the creation of a Sino-Japanese economic bloc. In the meantime certain grave currency difficulties arose in China. The British Government entered into conversations with the governments at Washington, Paris and Tokyo with a view to concerting a plan of international assistance to China for correcting her currency difficulties. The American Under-Secretary of State, in addressing press correspondents, said that if China needed or desired financial assistance from abroad, his own government was at one with the British Government in favouring a sympathetic consideration of the possibility of rendering such assistance by co-operative action among the powers concerned. Japan looked upon this with certain amount of suspicion. This was a form of foreign activity in relation to Chinese affairs which Japan suspected as having been resorted to in order to checkmate a Ghinese-Japanese entente. The Japanese Government hastened to declare that they considered an international loan unnecessary and undesirable. Then came Sir Frederick Leith-Ross on a mission to investigate and report upon the economic conditions in China in order that his expert advice may be available to the British Government for the purpose of discussing with the Chinese Government and with other governments concerned the problems to which the present situation gives rise. Soon thereafter the Chinese Government introduced certain currency measures without consultation with Japan. It was not unnaturally deduced that advice from the British financial expert had played an important part in the formulation of the Chinese currency plan. Added to this belief there was the further suspicion aroused by the rumours of a loan with British assistance. It was looked upon in Japan that leaders of the Nanking Government were selling their country to foreigners for their own aggrandizement. Japan felt that she could not overlook any attempt on the part of Great Britain to place a semi-colonial China under the domination of British capital.

From Exhibit 3, 241, paragraph 5, we have the following:

“On April 17, 1934, when the negotiation for the improvement of the Sino-Japanese relations by the Japanese Minister to China, ARIYOSHI and Chinese Foreign Minister WANG had hardly been opened, there arose a question of the so-called unofficial statement of spokesman AMO.

“At that time, Mr. MONNET, an expert financier of the Secretariat of the League of Nations, was staying in China from the end of 1934. The Foreign Office frequently received information from the Japanese Legation at Nanking and other sources that Mr. MONNET was drafting a plan for international co-operation to China, from which Japan was to be excluded, in concert with those antagonists of Mr. WANG Chin-wei. The Foreign Office, thereupon, instructed the Japanese Minister to China and other officials to keep in touch with Mr. MONNET and discourage him so that his activity in China might be restrained. Telegraphic instructions to the same effect were frequently given to the Japanese representatives in China from the Bureau of East-Asiatic Affairs, in which rather exaggerated expressions were used with a view to impress Mr. MONNET strongly.

“The so-called unofficial statement of spokesman AMO to the newspapermen was a patchwork of the contents of those telegraphic instructions drawn up for such special purpose by a certain bureau of the Foreign Office.”

HIROTA’s disavowal of the Amau statement certainly did not mean that he was disowning also any particular policy covered by it. His telegrams to the Japanese ambassadors had nothing sinister about them. Japan was openly claiming this special position, though her meaning of the claim was quite different from the meaning ascribed to it by other powers.

As would appear from a memorandum dated May 19, 1934, by the Secretary of State, Cordell Hull, (Exh. 937), the Japanese Ambassador called on and promptly communicated to him the contents of the telegram which he received from Foreign Minister HIROTA, claiming this special position.

The memorandum says:

“I felt in order not to be misunderstood here or anywhere that I should in a friendly and respectful spirit offer a succinct but comprehensive restatement of rights, interests and obligations as they related to my country primarily and as they related to all countries signatory to the Nine-Power Treaty, the Kellogg Pact, and international law as the same applied to the Orient. I then inquired whether the Japanese differed with any of the fundamental phases of the statement I sent to the Japanese Foreign Minister on the 28 th day of April 1934? The Ambassador replied that it did not differ, that his Government did agree to the fundamentals of my note or statement, but that his Government did feel that it had a special interest in preserving peace and order in China. He then repeated the same formula that his government had been putting out for some weeks about the superior duty or function of his government to preserve peace and of its special interest in the peace situation in—to quote his words—‘Eastern Asia'.  I then remarked that I would be entirely frank by saying that just now there was considerable inquiry everywhere as to just why his government singled out the clause or formula about Japan’s claiming superior and special interests in the peace situation in ‘ Eastern Asia’    

The Ambassador commenced protesting that this was not the meaning contemplated or intended .... The Ambassador again said that this so-called formula about the superior interests of Japan in preserving peace, etc., did not contemplate the interference or domination of overlordship such as I had referred to.             

This document gives us Japan’s meaning of her policy as also Secretary Hull’s view of the same.

Referring to this Amau statement, Foreign Secretary Simon stated in reply to questions in Parliament that:

“It appears that the statement in question was made due to the apprehension that certain activities of the powers in China are injurious to peace in the Orient or to Sino-Japanese relations or to China’s security, but there is no reason for such apprehension to arise as far as Britain’s policies are concerned. Britain is, as a matter of fact, avoiding injurious measures such as mentioned” (Exh. 3,244).

As was understood by Mr. Grew, HIROTA told him that “Japan had no intention whatever of seeking special privileges in China of encroaching upon territorial and administrative integrity of China or of creating difficulties of the bona fide trade of other countries with China”.

Mr. Grew in Exhibit 936 says: “Various FOREIGN ACTIVITIES have tended to disturb peaceful conditions in China, and Japan is naturally very much interested in those peaceful conditions owing to her nearness to China. But that does not mean that there is any intention or desire on the part of Japan to claim a privileged position in derogation of the rights and responsibilities to which the signatories of the Nine-Power Treaty are entitled.” This is what Mr. Grew, at that time, considered to be the explanation of Japan’s immediate attitude in relation to China.

The propaganda plan referred to above is Exhibit 195 in this case. It forms part of a routine daily report regarding Manchuria and is dated December 19, 1935. The entire plan stands thus:

“Kwantung Army’s Propaganda Plan Which Shall be Carried Out in Parallel with its Military Activity in North China.
“I. General Principle.
“ We start our propaganda to convince the whole world of our lawfulness, as soon as the advancement of the Kwantung Army into China Proper takes place. We shall launch out on a movement to estrange the inhabitants of North China from the central government, by fermenting anti-Kum- ingtung and anti-communism agitation among them. As for the Chinese people and army of the rest of China, we shall take a measure to form an antiwar atmosphere.
“II. The program of propaganda.
“ 1. The central government has regarded North China as a colony, in a sense, and has long made it the object of exploitation. The inhabitants in North China, therefore, have been cherishing a strong desire to establish a separate government of their own in order to shake themselves from the fetters of the central government. Burning with strong aspiration for independence, the people concerned have expressed their firm resolution to establish an independent country.
“2. The enactment of the nationalization of silver has made the central government the object of resentment, and as a result of it, the movement to establish a new independent government in North China is making rapid progress.
“3. It is the greatest desire of the Japanese Government to form an anticommunist front with the North China independent government, for it may be considered the first ray of hope for the establishment of the lasting peace in the Orient by the harmonious co-operation among Japan, China, and Manchuria. We, therefore, shall assume a definite attitude to support wholeheartedly the establishment and development of the independent government in North China.
“4. The Chinese central government has violated the agreement of cessation of hostility in North China and other military agreements; they have been disturbing the peace of Manchuria; instigating a boycott of Japanese goods, and an anti-Japanese sentiment; and has become a great menace to the Japanese interest and residents in North China and the existence of the Manchurian Empire; therefore, we have to make it clear that we shall be obliged to resort to arms if the Chinese government continues such underhanded tactics.
“ 5. It must be made clear that when we do dispatch our military force to China sometime in the future, we do it for the purpose of punishing the Chinese military clique, and not the Chinese people at large.
“6. We shall try to enhance an anti-war sentiment among the people, by propagandizing extensively that the employment of military forces by the Chinese central government or other military Lords will reduce the people to the greatest misery and will lead to the destruction of the country.
“7. As for the Chinese forces, we will take a measure to promote antago
nism between them and to increase their admiration for the strength of the Japanese military power, thus depriving their fighting spirit.
“8. Our propaganda for Manchuria will be, that the appearance of the independent government in North China is nothing but a concrete manifestation of their longing for the fine administration of the Manchurian government, and it will brighten the future of Manchuria.
“III. Execution program.
“ 1. Propaganda shall be planned and carried out by the Army staff. The special service facilities in China and Inner Mongolia and also the expeditionary forces there shall also perform the duty.
“2. Prior to the advance of our military forces into China Proper, this propaganda shall be launched, chiefly to support from the side, the propaganda of the Japanese government and the Japanese forces stationed in China. After the advance of our forces into China proper, it shall be performed so as to facilitate our military activities.
“3. Propaganda within their sphere of activities shall be carried out in conformity with the above-mentioned plan by the dispatched Force. As a rule, personnel necessary for such propaganda shall be raised by the dispatched troops. But, if it is impossible for them to raise the necessary personnel, Army staff section will solicit them. Propaganda section will be dispatched directly from the Army, if necessary.
“4. A close connection with the Japanese forces and various Japanese a- gents in China shall be maintained in the execution of this plan.
“5. Such propaganda activities as do not fall under this plan shall be carried out in conformity with the Kwantung Army ’ s propaganda plan in peace time.”
This is only a plan, and is only a plan for propaganda. There is absolutely no evidence to show that any propaganda on this line was ever actually made. As a plan for propaganda, it simply indicates, at the worst, some preparation for a contingent military move.

As I have pointed out elsewhere, propaganda has become an important function in international life. However much it may be abused by the nations, its gaining in importance in international society is indeed of a very healthy significance. Its importance signifies growing respect for world opinion and the consequent anxiety shown in informing the world public. We are not entitled to proceed on the assumption that propaganda necessarily implies false information.

The plan mentions the formation of an anti-communist front. Any cursory reading of the evidence that has been placed before us would convince one that one very important factor in moulding Japan ’ s China policy was what Japan characterized as communist menace. It will be a mere repetition to point out here again that this was and still is a menace which is having a very great influence on the foreign policies of the various powers.

The accused offered evidence in order to establish that this was a real menace which Japan had to face and consequently had to prepare herself for any eventuality that might happen. We have excluded the evidence on this point. I shall presently consider what difficulty has been created by such exclusion.

If we examine carefully the several items of the plan, we would find that there is nothing in them which would entitle us to assume any of the items to be false. No evidence has been laid before us to establish the falsity of any of the matters which the plan proposed to publicize to the world.

The HIROTA policy and the relevant cabinet decisions will be found in Exhibits 977 (30 June 1936), 216 and 704 (7 August 1936).

I shall take up the detailed examination of the HIROTA policy in connection with the case of general preparation for war. The prosecution laid great stress on this policy in that connection in order to characterize the preparation as one for the aggressive purposes.

The statesmen who in 1936 came to shoulder the responsibility of managing the affairs of Japan had to face the difficulty created also by the Manchurian Incident, irrespective of the question whether or not Japan deserved such difficulty. Once such steps were taken, it was no longer easy for the Japanese Government to slip back unobstrusively even into the position of 1931. The incident further aggravated the difficulty which the world economic depression had already put in the way of the intelligent management of Japanese affairs. World-wide repercussions actually followed the Japanese action at Mukden and the statesmen who afterwards came in office could not have ignored all these difficulties, whoever might have been responsible for the situation. The evidence sufficiently makes it clear that what happened was a subsequent development determined by several such new factors arising since the Manchurian Incident.

The policy did not involve any aggressive meas. HIROTA’ s method was that of steady and patient persuasion and of remaining on terms of friendly intercourse with the Government of Nanking. His was indeed a co-operative policy.

Japan required this co-operation both in the political sphere and in the field of economics. In the political sphere the co-operation implied first an official repression of all anti-Japanese manifestation in China and secondly a collaboration in Japan’s crusade against communism. Emphasis on these two points were the main features of the three point program referred to in the chain of events presented to us. In the field of economics, the fundamental idea was the creation of a Sino-Japanese economic bloc. In view of the bloc economy developing everywhere in the world, this can hardly be condemned as aggressive or criminal on the part of Japan. It was indeed of supreme importance to Japan to develop a source of supply within her own sphere of control. It was not at all surprising that the policy of the Japanese Government would have a stamp of their disapproval of international schemes calculated to checkmate a Chinese and Japanese entente.

The February Incident of 1936 referred to in this connection will be dealt with in connection with the case of seizure of political power. 

The incident was an attempt by the extreme element in the Japanese army to force the hands of their own military chiefs by taking direct action against the representatives of the social and political order which they designed to overthrow.

Introduced here in the present connection, the incident no doubt can give a sinister complexion to the factum of HIROTA’s coming into premiership. But there is absolutely nothing on the record to show any connection between that incident and the formation of the HIROTA Cabinet, excepting that the incident caused the fall of the OKADA cabinet and the succession of the HIROTA Cabinet.

These domestic incidents certainly contributed towards the formation of Japan’s policy. But, as I have repeatedly pointed out, they were only a few of the various complex factors operating in synergy and synchronism in this respect.

TOJO’s telegram of 9 June 1937 is Exhibit 672. Much was made of this telegram, perhaps because it bears the name of TOJO and probably because this is the first time that TOJO could be named in connection with any stage of the case prior to 22 July 1940 when he became War Minister in the Second KONOE Cabinet. The document is dated 9th June 1937 when TOJO was the Chief of Staff of the Kwantung Army. It is marked ultra secret. It is a telegram from the Chief of Staff of the Kwantung Army to Vice-War Minister and Vice-Chief of General Staff. It runs as follows: “Judging the present situation in China from the point of view of military preparations against Soviet Russia, I am convinced that if our military power permits it, we should deliver a blow first of all upon the Nanking regime to get rid of the menace at our back. If our military power will not permit us to take such a step, I think it proper that we keep a strict watch on the Chinese government that they do not lay a single hand on our present undertakings in China until our national defense system is completed. We will thus wait for the Chinese government to reconsider.”

With this we are given the Marco Polo Bridge Incident which happened within a month of this telegram.

I would again emphasize the fact that for my present purpose it is not necessary for me to condemn or commend any particular policy adopted by any party. My purpose is only to see whether it can be explained satisfactorily without having recourse to the theory of a conspiracy as asserted by the prosecution.

In order to appreciate the policy or the proposal conveyed in Exhibit 672, we should remember one factor of a very grave consequence to Japan which came into existence in the early part of 1937: I mean the formation of the Kuomintang-Communist United Front. It may be that it was Japan’s own policy in China which brought the Chinese communists into line with the Central Government. But that is immaterial for our present purpose.

After nearly ten years of separation and uninterrupted conflict, the reconciliation between the Kuomintang and the Chinese Communist party took 
place early in 1937. Since the co-operation of China in combatting the spread of communism in East Asia had been the cornerstone of Japan’s three point program, the restoration of amicable relations between the Nanking and the Chinese Communist party was calculated to produce grave effects on Japan’s policy. Further, this reconciliation seems to have been to a great extent influenced BY Moscow.

Moscow realized that any support given to the Chinese communists in fighting against Nanking would play directly into the hands of the Japanese by prolonging the civil war and strengthening the pro-Japanese group in the Chinese capital.

It seems that owing to lack of support from Russia, the Chinese Reds were left with no other choice than to seek a reconciliation with Nanking. Whatever that be, remembering Japan’s attitude towards communism, and keeping in view how Japan was always seeking China’s co-operation in fighting communism and communist developments, this union would amply explain the proposal in Exhibit 672 without taking the matter back to any sinister design of any earlier period. We might also remember that the Protocol of Mutual Assistance between the U. S. S. R. and the Mongolian People’s Republic was dated 12 March 1936 (Exhibit 214).

The territory of the Mongolian People’s Republic was liberated with the support of the Red Army in 1921 and since then the country was in relation of close friendship with the U. S. S. R. We are told in this document that there had been a ‘ Gentleman’s Agreement’ existing between the two countries since 27 November 1934 providing for mutual support with all means in averting and preventing the threat of a military attack and for rendering each other aid and support. This agreement was being now confirmed in the form of the present protocol.

This Protocol by its Article I provided that “in the event of a threatened attack on the territory of the Union of Soviet Socialist Republic or the Mongolian People’s Republic on the part of a third power, the governments of the Union of Soviet Socialist Republic and the Mongolian People’s Republic obligate themselves to confer immediately on the situation created and to take all such measures as may be required for the defense of the security of their territories” . This might give the Russian authorities virtually a free hand in Mongolia. They and the Mongolian governments had only to agree that an occasion for security measures had arisen.

It may also be noticed that by the time the Soviet government had their forces strongly entrenched in the Trans-Raikal region, the construction of the new Baikal-Amur Railway was already far advanced. Arrangements had now been completed which would give the Union a free hand in Outer Mongolia in the event of a threat of war.

“In the same month in which the outside world was apprised of the existence of this military alliance between the U.S.S.R. and Outer Mongolia,
an event took place in Hsingan, the Mongol Province of ‘Manchukuo’. 

A plot was stated to have been discovered involving several high provincial officials—among them the Mongol Governor himself—who were alleged to have
been found to be engaged in a scheme for bringing about, with Russian assistance, a revolt for the purpose of uniting Hsingan to Outer Mongolia.”

I am mentioning all these only to show the complexity of the situation. It may be easy to present an attractive picture of a conspiracy by placing together a few of such events. But it is very difficult to unreveal their real relations. This difficulty does not in the least diminish when we are called upon to fix criminal responsibility on the members of a defeated Power for such happenings.

In this connection we may notice the utterances of ITAGAKI in full, of which a part has been given to us in the above chain. Exhibit 761A gives the relevant “ extract from conversation of ITAGAKI Seisiro with Ambassador ARITA on 28 March 1936”. ITAGAKI is credited with having said as follows:

“THE PROBLEM OF OUTER MONGOLIA
“Outer Mongolia is a secret zone. The Czarist Regime had already stretched out its evil hand and had made this secret zone a protectorate.
“Since the revolution the Government of Soviet Russia has adopted the same policy and succeeded in winning over this country. As is quite evident if we look at the map of East Asia, Outer Mongolia is of importance from the point of view of Japanese-Manchukuoan influence today because it is the flank defense of the Siberian Railroad which is a connecting line between Soviet territory in the Far East and in Europe.
“If Outer Mongolia be combined with Japan and Manchukuo, Soviet territory in the Far East will fall into a very dangerous condition, and it is possible that the influence of the Soviet Union in the Far East might be removed almost without fighting. Therefore, the Army aims to extend Japanese-Manchurian power into Outer Mongolia by all means at hand and as its first step, to establish normal and complete diplomatic relations between Manchukuo and Outer Mongolia regarding the latter as an independent country, without considering Soviet Russian will. They are furthering their work against Western Inner Mongolia, to be explained next, to conciliate the Outer Mongolian race.
“But if Outer Mongolia should set it at naught our moderate intentions as stated above and should invade Manchukuo with Soviet Russia, the Imperial Army is ready to hold fast to each foot and inch of territory with firm resolution in light of the spirit of the protocol between Japan and Manchukuo.
“THE PROBLEM OF INNER MONGOLIA
“Part 3.
“Western Inner Mongolia (Chahar and Suiyuen Province) and the zone to the west of these are of great value for executing the continental policy of - Japan.
“ Should the said zone be placed in the sphere of Japanese and Manchurian influence, it means that will be a base for pacification of their brothers of
the same race in Outer Mongolia, moreover that the influence of Soviet Russia which comes from HSING-KIANG, as well as a land link between Soviet Russia and China, will both be blocked, fundamentally frustrating the plan of the Third International movement against China. In a passive sense the said zone will be the shield against Communization of the establishment of peace and order in Manchukuo. If the said zone should not be placed in the sphere of Japanese and Manchurian influence, but left to natural tendencies, it is obvious that Bolshevization will immediately close in on the western frontier of Manchukuo through Outer Mongolia and Sinkiang district.
“From the above standpoint the Imperial Army has been furthering its work with regard to Western Inner Mongolia for several years. The conditions in the past and at present are described in a separate sheet. The Imperial Army is resolved to further its work overcoming all sorts of obstacles.”

The Inner Mongolian autonomy movement had led in 1933 to the establishment of an autonomous council. The promises then given by the Chinese authorities to put a stop to Chinese encroachment on the tribal pasture lands had, it appeared, been very imperfectly honoured, and the discontent of the tribesmen remained unabated.

The agents of Japanese Policy in North China only seized this opening. The autonomy movement itself was a genuine one. Of course, Japan always regarded the situation in the regions bordering on Manchukuo with interest. The Kwantung Army seems to have given the revolt its support as being a convenient instrument for carrying forward a stage further to the westward, the new “Great Wall” which it was in process of erecting between China and Outer Mongolia. The Kwantung Army represented the conflict in Suiyuan as a struggle against communism. It may be noticed in this connection that as a matter of fact in the spring of 1936 Suiyuan was heing threatened with an invasion of Chinese communists. Over 20, 000 men of the Red Army were reported to have passed from Shensi into Shansi by March and to be approaching the borders of Suiyuan. It was about this time also that the Chinese communist leaders sent out a circular message, addressed to the Chinese Government, Army and People, in which they pleaded for a united front against Japan and offered the co-operation of the Red Army.

The account of the autonomous movements in North China given in the chain of events presented to us was taken from the evidence of TANAKA Ryu- kichi. This evidence was given by the witness on July 6, 1946. The defense objected to this evidence and wanted “to know whether or not this man was testifying from his own personal knowledge or whether he was giving us facts from history”. The President pointed out that “it was obviously hearsay”. “He is giving us history, but it is admissible nevertheless.”

Accounts of these movements can also be found in the Survey of International Affairs of 1933, 1934, 1935 and 1936. I believe the history given there would be more dependable than the ‘hearsay’ of this witness. No-doubt this witness was produced before us even by the Defense. Perhaps this situation was created by our adopting a stringent rule of cross-examination whereby we confined such examinations only to the matters brought out in examination-in-chief. I have already given my reason in connection with the Manchurian incident why I could not rely on any hearsay of this witness.

I need not proceed further with the consideration of the matters as analyzed above. I must once again make it clear that at present I am only dealing with the question of the alleged over-all conspiracy. For this purpose, it is not at all necessary for me to consider whether or not Japan’s actions in China were justified. What concerns me now is to see if such actions could be explained without the alleged over-all conspiracy. Every observation that I make in this connection should, therefore, be taken as limited to this purpose only.

At the very outset I must say that I am not a believer in one nation having interests within the territory of another. It is, in my opinion, an indication of a mere delusion when a people feels that “this thing which they want and must have from their neighbour is needed for their very life; they cannot live without it”. It seems that whatever a nation strongly desires, to that the nation’s mind gives a lurid importance. Death and destruction are fancied to await the nation if she does not possess this. A nation, it seems, easily comes to believe that she cannot live without the thing she desires to have.

But the question before us is not whether a nation should be allowed to have the delusion of such vital necessity and to behave accordingly. The question really is whether in international life such a behaviour can be condemned as abnormal. Remembering the character of the international society and international law, the question with which we are now concerned is not whether such delusions are justifiable in a nation but whether such delusions, as a matter of fact, exist in international life and how they influence the behaviour of the several member nations.

Japan had acquired some ‘interest’ in China which Japan felt was very vital for her existence. Almost every great power acquired similar interests within the territories of the Eastern Hemisphere and, it seems, every such power considered that interest to be very vital. I need not pause here to examine the history of the acquisition of these interests. It may safely be asserted that such acquisitions would very seldom be traced to any just method. Whatever that be, these interests did exist and the different powers felt it fully justifiable to extend their reservation of the right of self-defense to the protection of such interests as well while singing the Pact of Paris. Japan ’ s right in respect of her interest in China must be measured by this standard, at least for our present purposes.

Three very important events will occupy our consideration on this phase of the case. I mean:

1.            The civil war in China and the state of anarchy prevailing there consequent thereupon;
2.            the Chinese National Boycott;
3.            the development of Communism in China.

In international society the membership goes to a state. As yet the international organization does not seem to go beyond the state. However desirable it may be to have the international organization on the basis of humanity it did not as a matter of fact recognize as its member anything BUTASTATE. Even 
the present day behaviour of the world powers negate any wider basis. In an international organization founded on the basis of humanity, it would hardly be justifiable for any Power to help one section of a people in its fight against another, even in the name of checking the spread of communism. It therefore becomes a very pertinent question in international law how far a people can claim the protection of international law when its organization as a state fails and it is hopelessly involved in anarchy.

It may be contended that to be a state with the rights of a state, a people must have a government which can represent them with the outside world and through which they can accept and discharge responsibility.

So long as any single government continues to rule the entire country the question remains simple, When however there are two or more contending governments it may be difficult to determine which one is entitled to be recognized as the continuation of the old state. Foreign countries may not be obliged to recognize all the contending governments as legitimate rulers of the country.

There are sometimes two armed parties, rendering it difficult for international purposes, to make out which, if either, is the state.

It is of no consequence that the rival parties wish to remain one nation; nor even that they think that they are remaining one nation. The sole matter which can entitle them to remain one nation is that they have one government which can represent them to the outside world.

A difficult question arises when a party in undisputed control, and consequently invested with valid and indisputable legal title, is confronted with a rebellion and reduced to great, though not total, insignificance.

The interests of foreign powers demand that the people who in fact wield the power shall have the responsibilities of government. This is what the several signatory powers of the Washington Treaty were repeatedly pointing out to the Chinese Government as has already been noticed by me. Foreign states cannot be expected to stand by and watch the ruin of their interests in cases where there is no government capable of protecting Or willing to protect such interests.

‘Anarchy’ may mean the absence of all government; but it may also mean the presence of several competing governments. Such authorities are in fact, the rulers of embryo new states. Their desire to swallow up their neighbours is a matter with which third parties have no concern. Power and responsibility must go together, and, outside the territory which they actually control these contending authorities may neither have the legal power conferred by prior legitimate rule, nor the physical power conferred by actual presence of force. Of this territory they may or may not be considered to have formed a state. Foreign states cannot be expected to treat as a single state a region in which there are two perfectly independent governments, perhaps equally devoid of title. The idea is inconsistent with the very basis of international law.

I need not stop here to consider the theories of suspended state or suspended animation of states. For my present purpose it would suffice to remind
that the internal affairs in China had been viewed with alarm almost by all the powers since the Treaty of Washington and they could not always keep their hands off the state, and seek their remedy only in diplomacy or in candid war with all its risks and responsibilities. A more detailed discussion of this matter will be found in an earlier part of this judgment.

It is, I believe, amply evident from what I have said above, that the state of affairs in China prior to the Marco Polo Bridge Incident has a pertinent bearing on the present case. The “civil war in China and the state of anarchy prevailing there consequent thereupon”, if established, might go a great way, at least to explain, if not, also to justify, the Japanese action in North China as alleged by the prosecution. I believe that in this connection it would be a pertinent enquiry to see if the Japanese forces in China restored peace and tranquility there as alleged by defense. Unfortunately, as has already been noticed by me we on the 9th and the 25th July 1946, ruled to exclude evidence relating to the state of affairs in China prior to the time when the Japanese armed forces began to operate as also the evidence showing that the Japanese forces in China restored peace and tranquillity there. This exclusion of evidence, in my opinion, makes it difficult for us either to come to a decision as to whether or not these Japanese actions were indicative of any prior over-all conspiracy as alleged in the indictment, or to characterize them as aggressive.
As I have already noticed, the defense in answer to this phase of the case offered to prove the character of communism in China and its rapid development there. The Tribunal by its majority decision dated 29 April 1947 ruled that such evidence was irrelevant.

It is really unfortunate that the evidence offered by the defense on this point had been rejected. I have already given my opinion about this ruling. In the absence of that evidence it would not be fair to come to any decision as to the nature of the Chinese Communism and its connection with the communism in Soviet Russia, or as to its part in the spread of the hostility. We have already seen what the Lytton Commission had to say about this communistic development in China.

The terror of Chinese Communism so far as the foreigners in China are concerned may also be seen from the Survey by the Royal Institute of International Affairs.
The Survey says:

“Communism and banditry (in so far as a clear distinction could be drawn between them) were the twin features that were dominant, in 1932, over the Chinese scene; and these two scourges, again, had increased in intensity without any substantial change in their character. Since they were simply the aftermath of anarchy and civil war and famine, they were bound to increase so long as these efficient causes persisted. The prevalence of brigandage can best be indicated by a mention of a few typical outrages against foreigners—with the annotation that these are a few illustrations taken at random from a long list.”. . . .

“It will be seen that, by the year 1932, Communism in China had become AN ORGANIZED AND EFFECTIVE POLITICAL POWER exercising exclusive ad- 
ministrative authority over large stretches of territory, and that the Chinese Communists were in some degree affiliated to the Communist Party in Russia. In view of the resumption of diplomatic relations, on the 12th December, 1932, between the Russian Communist Government at Moscow and the Kuomintang Central Government of the Chinese Republic at Nanking, it is pertinent to inquire how close the affiliations between the Chinese and the Russian Communists were, and how far Communism stood for the same things in China as in the Soviet Union. If Communism in China were really bone of the bone and flesh of the flesh of its Russian homonym, then, at the turn of the years 1931 and 1932, the world was faced with the possibility that the renewal of relations between Moscow and Nanking might be followed by an elimination of the discomfited Nanking Government and the discredited Kuomintang, in order to make way for an alliance between the Russian Soviet Union and a Chinese Soviet Union of the same colour. A geographical corridor between Russia and the Chinese Communist domain in the Yangtse Basin was offered by the Soviet Republic of Outer Mongolia, which was under Moscow’s aegis, and by the Chinese province of Shensi; the stronghold of Feng Yuhsiang’s Kuominchun, with its Russian proclivities. The possibility that Chinese and Russian Communism might join hands was thus to be reckoned with if Chinese Communism were Communism in the Russian sense. On the other hand, it was little more than theoretical, if the common ground between the Russian and the Chinese movements did not extend beyond the mere community of name; and from the passage here quoted from the Lytton Report it will be seen that this, also was a tenable view. The so-called Chinese Communism, as far as its character was known to the outer world in 1932, might plausibly be interpreted as a mere agrarian revolt against intolerable mis-government—a revolt which had sought prestige in the unwarrantable adoption of a dreaded name  In the light of such information as existed at the turn of the years 1932 and 1933, it was hardly possible to judge which of these two alternative estimates of the nature of Chinese Communism was nearer to the truth.”

The Survey says that the Communists started a parallel government in China.

“The frontier of this particular Communist Government in Hupeh (the so-called King Li Government) was marked by a notice-board planted on the north bank of the Yangtze, above Hankow, in a prominent position; and THIS GOVERNMENT ISSUED ITS OWN COINAGE AND STAMPS FROM ITS LOCAL CAPITAL.

Apart of the picture of the Chinese Communism in 1932 as painted in the Lytton Report may again be viewed in this connection. The Report says:

“Large parts of the provinces of Fukien and Kiangsi, and parts of Kwangtung, are reliably reported to be completely sovietized. Communist zones of influence are far more extensive. They cover a large part of China south of the Yangtse, and parts of the provinces of Hupeh, Anhwei, and Kiangsu north of that river. Shanghai has been the centre of the Communist propaganda. Individual sympathisers with Communism may probably be found in every town in China. So far, two provincial Communist governments only have been organized in Kiangsi and Fukien, but the number of minor Soviets runs into hundreds. The Communist Government itself is formed by a committee elected by a congress of local workers and peasants. It is in reality, controlled by representatives of the Chinese Communist Party, which sends out trained men for that purpose, a large number of whom have been previously trained in the U. S. S. R. Regional Committees, under the control of the Central Committee of the Chinese Communist Party, in their turn control provincial committees and these, again, district committees and so on, down to the Communist cells organized in factories, schools, military barracks, etc..

"When a district has been occupied by a Red Army, efforts are made to sovietize it, if the occupation appears to be of a more or less permanent nature. Any opposition from the population is suppressed by terrorism. The programme of action consisted in the cancellation of debts, the distribution among landless proletarians and small farmers of land forcibly seized, either from large private owners or from religious institutions, such as temples, monasteries and churches. Taxation is simplified; the peasants have to contribute a certain part of the produce of their lands. With a view to the improvement of agriculture, steps are taken to develop irrigation, rural credit systems, and co-operatives. Public schools, hospitals and dispensaries may also be established.”

“Thus the poorest farmers derive considerable benefit from Communism, whereas the rich and middle-class land-owners, merchants, and local gentry are completely ruined, either by immediate expropriation or by levies and fines, and, in applying its agrarian programme, the Communist Party expects to gain the support of the masses. In this respect, its propaganda and action have met with considerable success, notwithstanding the fact that Communist theory conflicts with the Chinese social system. Existing grievances resulting from oppressive taxation, extortion, usury, and pillage by soldiery or bandits were fully exploited. Special slogans were employed by farmers, workmen, soldiers, and intellectuals, with variations specially adapted to women.”

“COMMUNISM IN CHINA IS NOT by any means, as in most countries other than the U. S. S. R., either a POLITICAL DOCTRINE held by certain members of existing parties, or the organization of a special party to compete for power with other political parties. IT HAS BECOME AN ACTUAL RIVAL OF THE NATIONAL GOVERNMENT. It possesses its own law, army, and government, and its own territorial sphere of action. For this state of affairs there is no parallel in any other country.”

Hall says: “If the safety of a state is gravely and immediately threatened either by occurrences in another state or aggression prepared there, which the government of the latter is unable, or professes itself to be unable, to prevent, or when there is an imminent certainty that such occurrences or aggressions will take place if measures are not taken to forestall them, the circumstances may fairly be considered to be such as to place right of self-preservation above the duty of respecting freedom of action which must have become nominal, on the supposition that the state from which the danger comes is willing, if it can, to perform its international duties, ”
It would be necessary for us to consider how far this right would extend to the protection of interests of the kind claimed by Japan in China and how the international community viewed the threat of communism in relation to such interests. Rightly or wrongly, it seems that since 1917 international mind was seized with the terror of Communism and somehow Russia was not considered to be a thoroughly safe neighbour for the rest of the world. Even now it is believed in many quarters that “before Russia can have a correct ideology and thereby become a thoroughly safe neighbour for the rest of the world, certain unjustified portions of her Marxian philosophy must be dropped.” One such defect is said to be the determinism of her dialectic theory of history and the application of this dialectic to nature itself, rather than merely to theories of nature. The essential point in the error is said to be “the supposition that the negation of any theory or thesis gives one and one antithesis, and one and only one attendant synthesis.” “Nobody has the right to affirm with dogmatic certainty that he is giving expression either to the nature of the historical process or to the dialectic achievement of greater good, when he selects a given utopian social hypothesis such as the traditional communistic theory and forthwith proceeds to ram it down the throats of mankind in the name of the determinism of history.”

It might not be necessary for us to examine the correctness or otherwise of such criticism of communism or of Russian theory and practice of the same. At the same time we might have to take into our consideration THE WORLD TERROR of these factors, the growth of Communism in China, its connection with the Soviet Russia and its probable effect on Japanese interest in China. We might have to consider whether the circumstances would indicate the bona fides of the measures taken by Japan to forestall the danger, if any, involved in such developments. The so-called threat of Communism being a new development in international life and in lives of the states, the question would require a very serious and careful consideration.

Even assuming that the right of self-protection would not extend to such interests as Japan had in China and that Japan’s action in China was not justifiable even if such interests were endangered by the development of communism there, the growth of communism might, at any rate, explain the action taken and thus go against the theory that such actions were only several steps in an over-all conspiracy.

In my opinion, therefore, the exclusion of evidence on this point also has made it unjustifiable on our part to discard the case of the defense that the spread of hostility in China was due to communist attitude and disturbances. Apart from the question of justification, such developments sufficiently explain the occurrences and to that extent lead us away from the inference of any over-all conspiracy.

There is yet another explanation of the spread of the hostility and this also satisfactorily explains the spread without the alleged conspiracy.

During the period from 1905 to 1931 the Chinese people launched no less than eleven major boycott movements directed at Nations with which the Chinese Government was at peace: One against the United States, one against Great Britain and nine against Japan. The defense case is that since 1931 such boycotts against Japan were intensified.

During their investigation of the Manchurian affair, the members of the Lytton Commission had occasion to examine carefully into the origin, methods and effect of the nation-wide boycotts which had been declared so frequently by the Chinese. The Report of the Commission, which includes an additional volume entitled Supplementary Documents—together with the material submitted to the League by the Japanese and Chinese Assessors offer us a rich and authoritative source of information in this respect.

It is remarked in the supplement that information as to the effects of the boycott on various Japanese interests is unavoidably, almost exclusively, of Japanese origin “because of the fact that no one else is in possession of such documentation.” The commission had occasion to remark that “the description given in Document “A” Appendix 7, submitted to the Commission by the Japanese Assessor, may be safely taken as correct.”

According to the figures in the Commission’s supplement, Japanese trade had already, as the result of the 1931 boycott, suffered a loss of 105,000,000 yen compared with the results of the preceding year. There is inserted in the Supplement the following statement of the effect of 1931 boycott on Japanese residents:

“In places so far apart as Tientsin, Shanghai, Hangchow, Soo- chow, Wuhu, Nanking, Kiukang, Hankow, Ichang, Chungking, Shashih, Chengtu, Foochow, Wenchow, and Yunnan, anti-Japanese feeling seems to have been, and still is, intense. In numerous cases, Chinese servants left Japanese by whom they were employed, Japanese were cut off from the supply of food and other daily necessities, and Japanese were subject to various forms of abuse and threats. In many cases, Japanese had been compelled to flee for safety or to withdraw altogether to Japan. Many Japanese lost their employment.”

It may be assumed that the above extract is representative in kind, if not in degree of the effects of all national boycotts on Japanese residing in China.
The Commission of Enquiry found that in certain of the movements under discussion THE CHINESE GOVERNMENT had actually participated in the organization and encouragement of boycott activities.

Where the government itself participates in a boycott, the question of the legality or illegality of the methods employed, viewed from the standpoint of the domestic law, is not of primary importance in determining national responsibility. If the methods were illegal from the standpoint of the local law, that fact would probably be regarded as an aggravating circumstance, for governmental participation of itself may at once constitute a violation of international law and a breach of treaty stipulations. The high contracting party which had accorded the right would be engaged not only in destroying that which it had bound itself by contract to permit and preserve, but would be employed in annihilating rights which by the law of nations it is its duty to protect.

In connection with the question of governmental participation in the boycott, an interesting and novel situation was presented to the Lytton Commission. On behalf of Japan, it was asserted that the Chinese Government took an active part in pushing the movement. The contention was denied by the Chinese Assessor. In conversations which the Commission of Enquiry had with a representative of the Chinese Government, the latter, in response to the question as to whether government officials or departments had directly participated in certain activities of the boycott, replied that “. . . the Government had given no such orders; members of the Kuomintang may possibly have done so.” The Kuomintang is the Nationalist Party of China. It is important to note that the Commission found that until 1925, or possibly 1928, the “national” boycotts were organized and directed by various unofficial organizations; and that “to begin with the boycott of 1925, and quite clearly with that of 1927-28, the direction of the movements was more and more centralized in the hands of the Kuomintang .... the standard bearer of Chinese nationalism.

"It appears from the Commission’s Supplement, and the authorities therein quoted, “that from the beginning the Kuomintang assumed a position of direction and control with respect to the National Government and its predecessor, the National Government; that the so-called “Principles Underlying the Period of Political Tutelage” were confirmed by the Third National Congress of the Kuomintang in March of 1929; that while under the principles the exercise of executive, legislative, judicial and other powers was delegated to the National Government, the direction and control of the National Government in the administration of important state affairs shall be entrusted to the Central Political Council of the Central Executive Committee of the Kuomintang.”

It is not surprising that the Commission puts the question: “What is the responsibility of a government which is practically an organ of the controlling political party of the country?”—finding, as the Commission does, that “ the real source of Government power is not the Government itself, but the party.”

In the Report proper, the Commissioners referring to the question of national responsibility for injuries resulting from the boycotts, says:

“In this connection, the question of relations between the Government and the Kuomintang must be considered. Of the responsibility of the latter there can be no question. It is the controlling and co-ordinating organ behind the whole boycott movement. The Kuomintang may be the master and maker of the Government; but to determine at what point the responsibility of the party ends and that of the Government begins is a complicated problem of constitutional law on which the Commission does not feel it proper to pronounce.”

A state cannot, it is believed, elude responsibility by designating as its “government” an organization which in fact, as a matter of domestic constitutional law, is not vested with unrestricted power to determine policies, but is subject to the direct control of another entity. If the “ National Government” is “responsible” to a National Party and is “guided” by it, then for all practical purposes the party would appear to be the government, the real repository of public power, of which the visible government is the creature, devoid of independent initiative, .... It goes without saying that a national boycott movement can, and does, under certain conditions, assume the character of a defensive measure; but whether the action taken is defensive is inevitably bound to depend upon the facts of each case.

The Committee of Nineteen (Special Committee of the Assembly) appointed by the League of Nations to study and report on the Report of the Commission of Enquiry found that “ the use of the boycott by China, subsequent to the events of September 18, 1931, falls under the category of reprisals.” The view expressed by the Commission of Enquiry that “it seems difficult to contest that the boycott is a legitimate weapon of defense against military aggression by a stronger country. . . .” was accordingly accepted by the Committee.

.... In considering the question 'whether national boycotts give rise to national responsibility’, the steps which characterize the conduct of such movements are the essential considerations. The record of such methods in Chinese boycotts seems plainly to establish that the institution which has come to be known as the national boycott, far from being an expression of the liberty of choice of the individual, is an instrumentality the efficiency of which has been due to the lavish and unlawful exercise of threats and force; and that, generally speaking, it may not constitute an example of defensive action.

It may be contended that the national boycott, as exemplified by the instances herein discussed, does constitute an international delinquency for which liability may arise under the generally accepted principles of international law.

The matter was first brought to the attention of Prince Ching by the American Minister on June 3, 1905, who on that date was assured that steps would be taken by the Chinese Government to stop the agitation. On July 1 of that year, Prince Ching informed the American Minister, inter alia, that “this movement has not been inaugurated without some reason, for the restrictions against the Chinese entering America are too strong and American exclusion laws are extremely inconvenient to the Chinese.” From this statement it was concluded by the American Minister that “ the movement had a certain amount of sympathy” from the Chinese Government; and in his communication to Prince Ghing, dated August 7, this view was expressed, and was followed by the announcement that the United States would hold the Chinese Government responsible for losses accruing from the boycott.

On August 26, Prince Ching disclaimed governmental responsibility, adding that “at the very first, orders were sent out to crush the movement on account of the great friendship of our two countries.” In a communication of August 27 to Prince Ching, the Minister again declared it to be the duty of the Chinese Government to put a stop to the movement. On August 31 the government issued an Imperial Edict condemning the boycotting of American goods and enjoining upon governors and viceroys the duty of taking effective action to stop it.

On September 4, Prince Ching informed the Minister that the Chinese Government “has taken thorough action in the matter to the end that neither Chinese nor American citizens may suffer pecuniary loss.” The terms of the edict were ignored, and this circumstance was brought to the attention of Prince Ching by the American Minister in a communication of September 26, “insisting” upon the taking of “such additional measures as may be necessary to secure prompt obedience of the Imperial will and proper respect for the treaties between the United States and China.” “Immediately upon the receipt” of this communication, the Chinese authorities were instructed to take the needed action.

But the steps taken were inadequate, and on October 3 the American Minister again addressed Prince Ching announcing the necessity of effective action, and declaring that further delay on the part of the official who had hitherto failed to meet the terms of the edict “will inevitably be understood by my government as a flagrant manifestation of hostility by an agent of your government, for whose shortcomings the Imperial Government must be held responsible.” Still furthe_r delay was made the subject of complaint by the American Minister in a despatch to Prince Ching of October 30. On November 4, a further communication was addressed to Prince Ching by the American Minister “ urging the pressing necessity of orders being given to the Viceroy of the Liang Kuang provinces which will compel him to take measures for the complete termination of the boycott in his jurisdiction.” A proclamation by the Viceroy in language characterized by the Minister in a communication to Secretary Root as “vigorous and emphatic” would seem to have been of effect in terminating the situation which was the basis of the action taken by the United States on this occasion.

The question of China’s obligation to put an end to the boycott appears not only to have been seriously raised by the United States, but to have been pressed to a satisfactory conclusion with marked persistence and vigour. Prince Ching’s initial disclaimer of responsibility was not accepted by the U- nited States. On the contrary, on the receipt thereof by the American Minister, the demands of this government that China adopt a course consistent with the contentions of the United States with respect to national responsibility were immediately renewed, persistently maintained, and finally respected by China. Similar action was taken by that government on the occasion of the demand of Japan for the suppression of the boycott movement initiated in China in 1915 in connection with the “Twenty-one Demands”. In the case of the British boycott of 1925-26 for which the Canton Government repeatedly denied responsibility, a settlement was reached by the two governments which did not, it seems, involve any indemnity for boycott losses, and the movement came to an end, at least officially, in October of 1926.

But these considerations will be relevant only for the purpose of determining the justification, if any, of the Japanese action in China. Apart from such a question of justification, however, these boycott movements would sufficiently explain the spread of hostilities and would, to that extent, have relevant bearing on the question whether or not this spread of hostility was the outcome of any prior conspiracy.

The prosecution, in this connection, placed much reliance on its exhibit 3, 262, “An Outline Regarding the Settlement of China Incident”. This is a document dated October 1, 1937 and it purports to contain the following provisions: (l) General policy, (2) military operations, and (3) diplomatic measures, etc. . The contents of the document will be found at pages from 29, 772 to 29, 785 of the record. Its provisions no doubt throw much light on Japan’s future policy regarding China Incident. But I cannot read into it anything which would indicate any conspiracy of the kind alleged in the indictment .

I would discuss the Hirota Policy of 1936 later on. It does not indicate any conspiracy.