When World War II ended in Asia, the consuming sentiments of the victorious Allies were hatred and hope; and the tangle of these emotions was nowhere more apparent than in the war-crimes trials the victors conducted. The atrocities Japanese forces had committed in all theaters provoked a fierce desire for vengeance, and it was taken for granted that harsh punishment would be meted out to those found guilty of violating the established rules and conventions governing conduct in war. In formal terms, such “conventional” atrocities, or “crimes against humanity” more broadly defined, were identified as “Class B” war crimes; the planning, ordering, authorization, or failure to prevent such transgressions at higher levels in the command structure were categorized as “Class C” crimes. In practice, the two were often confused and it became common to refer to “B/C” war crimes. Thousands of Japanese were eventually accused of such crimes and brought before local military tribunals convened by the victorious powers.
With two exceptions—the hasty proceedings by U.S. military tribunals in the Philippines against generals Yamashita Tomoyuki and Homma Masaharu, both executed after being judged responsible for atrocities committed by troops under their commands—these local trials established no precedents, attracted no great attention, and left no lasting mark on popular memory outside Japan. The prosecutions that did significantly influence law and memory involved a small number of leaders accused and found guilty of unprecedented war crimes at the International Military Tribunal for the Far East, better known as the Tokyo war-crimes trial or the Tokyo tribunal.
Like the Allied trial of Nazi leaders at Nuremberg, the Tokyo tribunal initially captured the imagination of a war-weary world by expanding the interpretation of “crimes against humanity” and, more boldly yet, by introducing a sweeping new formulation of “crimes against peace.” In the victors’ idealistic rhetoric, although the Allied trials at every level would offer a model of fair and impartial justice, the showcase “Class A” tribunals at Tokyo and Nuremberg represented a momentous development indeed—in the words of B. V. A. Roling, the Dutch judge at the Tokyo trial, a moment when “international law was en route to banning war and rendering it a criminal offense.”
To Röling and countless others, holding individual leaders personally responsible for egregious acts of state constituted a “milestone in legal development” that seemed crucial in the nuclear age. Sir William Webb, the Australian president of the Tokyo tribunal, had this in mind when he inaugurated proceedings with the observation that “there has been no more important criminal trial in all history.” In an opening statement that impressed many Japanese, Joseph Keenan, the American chief prosecutor, took care to emphasize that “civilization” was the ultimate plaintiff, and civilization itself might well be destroyed if these judicial undertakings did not succeed in preventing future wars.1 In practice, such hopes and ideals inevitably became tainted by the double standards of those who sat in judgment, as some members of the Allied camp privately acknowledged. On the Japanese side, the contradictions between judicial idealism and plain victor’s justice provided fertile soil for the growth of a postwar neonationalism.
It was by no means inevitable that major war-crimes trials, let alone precedent-breaking ones, would follow the war. Until 1945 many American and British officials envisioned enacting swift and summary justice against the “archcriminals” in the enemy camp. Secretary of State Cordell Hull once told his British and Soviet counterparts that, if he had his way, he “would take Hitler and Mussolini and Tojo and their arch accomplices and bring them before a drumhead court-martial. And at sunrise the following day there would occur an historic incident.” Secretary of the Treasury Henry Morgenthau, thinking primarily of Germany, recommended that the Allies compile a list of top leaders who, on being captured and identified, should be executed immediately “by firing squads made up of soldiers of the United Nations.” As late as April 1945, only weeks before Germany’s capitulation, the British urged the Americans to approve “execution without trial” for top German leaders. Years later, some officials remained persuaded that this would have been the proper course in Japan as well.2
The attack on such advocacy of drumhead justice was led by Secretary of War Henry Stimson. Prompt justice based on fair legal procedures, Stimson argued, was “consistent with the advance of civilization” and would “have all the greater effect upon posterity.” Stimson made clear that he had in mind trials before military commissions, which would be empowered to expedite proceedings by making their own “bare bones” rules to avoid the legal technicalities that might arise in civilian courts or even in ordinary military courts martial. The secretary of war noted that apart from meeting the “judgment of history,” such trials would serve the educational and historical function of establishing a record of the enemy’s transgressions. In his memoirs, published shortly after the war, Stimson declared that aggression “is an offense so deep and so heinous that we cannot endure its repetition.” The Filipino jurist Delfin Jaranilla, who sat on the bench at the Tokyo tribunal, found these words so apt that he quoted them in concluding his own harsh judgment of the “Class A” Japanese defendants.3
When Japan surrendered, the major statement of Allied policy regarding Japanese war crimes remained what had been set forth in the Potsdam Proclamation:
There must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest, for we insist that a new order of peace, security and justice will be impossible until irresponsible militarism is driven from the world. . . . We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.
This was highly generalized, and necessarily so, for the victors were still deliberating about how to handle Japanese war crimes right up to the end of the war. What the Potsdam Proclamation conveyed most clearly was the rage in the Allied camp over Japanese maltreatment of prisoners. Long after the war had ended, and notwithstanding the revelation of the enormity of Nazi atrocities, great numbers of Americans, British, and Australians continued to believe that the enemy in Asia had been even more heinous than the German one. A statistic that emerged in the course of the trials reinforced this impression. Whereas 4 percent of American and British servicemen taken prisoner by the Germans and Italians were calculated to have died in captivity, the incidence of death among American and British Commonwealth prisoners of the Japanese was estimated to have been 27 percent.4
A Japanese nurse is sentenced to five years’ imprisonment at hard labor at a trial of accused “Class B” war criminals convened in Yokohama. She was found guilty of participating in the vivisection of a captured American airman, one of several such atrocities performed at Kyushu Imperial University in the final months of the war.
Shortly after surrender, there was speculation that as many as fifty thousand Japanese might be indicted for committing crimes against prisoners as well as atrocities against civilians in the areas their forces occupied. A year later, it was estimated that roughly ten thousand such suspects had been identified for possible trial. Eventually, around fifty military tribunals were convened at various Asian locales—twelve by the Dutch, eleven by the British, ten by the Chinese, nine by the Australians, five by the Americans, and one each by the French and the Filipinos.5 Other trials were conducted by the Soviet Union and, much later, by the Communist regime that came to power in China.
Most of the tribunals convened outside the Soviet Union and Communist-controlled China carried out their tasks between 1945 and 1949; the last concluded in 1951. For many reasons, it is not possible to provide exact data concerning the outcomes of these proceedings. The trials took place in widely scattered locations under numerous national jurisdictions. Precise records were not always maintained or made available. Sentences, especially involving capital punishment, were sometimes reviewed and altered. Some accused prisoners died awaiting trial. Prison terms often were not served in full. Still, the overall scale of these local tribunals is clear enough. According to the most authoritative Japanese tabulation, a total of 5,700 individuals were indicted for “Class B” and “Class C” war crimes. Of this number, 984 initially were condemned to death; 475 received life sentences; 2,944 were given more limited prison terms; 1,018 were acquitted; and 279 were for one reason or another not sentenced or never brought to trial. Fifty of the death sentences were commuted on appeal, mostly by the French. Country by country (the Soviet Union excepted), the number of death sentences upheld was greatest in the trials conducted by the Dutch (236 death sentences) and British (223), followed by the Australians (153), Chinese (149), Americans (140), French (26), and Filipinos (17). The generally accepted number of those actually executed is 920.6
A number of the accused were officers, some of relatively high rank. With the exception of Yamashita and Homma, however, few of them were well known. Most defendants were enlisted men at the lower levels of the chain of command, including conscripted colonial subjects assigned to serve as interrogators or prison guards. The indicted suspects included 173 Taiwanese and 148 Koreans, of whom over forty were executed.7 Some local trials involved single individuals; in others, defendants were judged collectively. The largest group trial appears to have been an Australian tribunal involving ninety-three men. The Americans collectively tried forty-six officers and men of the former imperial navy—of whom forty-one were sentenced to death. Roughly three-quarters of the defendants in these “B/C” tribunals were accused of crimes against prisoners. Whatever the charge, the alleged crimes were invariably cruel and often gruesome. Although some suspects languished in their captors’ hands for several years before being brought to judgment, the trials, once convened, were generally swift. Despite language problems, they averaged around two days each.8
The death by hanging of a convicted Japanese war criminal in Guam, 1947. Between 1945 and 1950, close to six thousand individuals accused of atrocities were brought before military tribunals convened throughout Asia by the victorious Allied Powers (not including the Soviet Union). Over nine hundred were executed.
At the same time, the Soviet Union conducted secret war-crimes proceedings against Japanese who had been captured in Manchuria, northern Korea, and Karafuto (southern Sakhalin). The proceedings of one of these trials, convened in Khabarovsk in December 1949 and involving twelve Japanese associated with “Unit 731” in Manchuria, which had conducted lethal medical experiments on some three thousand prisoners, was actually published in English in 1950. Secretly, the Soviets may have executed as many as three thousand Japanese as war criminals, following summary proceedings.9 In the case of China, the ten formal “Allied” military tribunals that sentenced 149 defendants to death were convened by the beleaguered Kuomintang (Nationalist) regime. The Chinese Communists subjected around one thousand Japanese prisoners to intensive “reeducation” during and after the war and brought forty-five to trial for war crimes eleven years after Japan’s defeat. Although all received prison sentences, the last of them had been returned to Japan by 1964.10
After a long war that saw the death of several million Japanese servicemen and civilians, the fate of these few thousand accused war criminals in faraway places did not initially attract great attention within Japan. Although the revelation of widespread Japanese atrocities did make an impression on the general populace, many appear to have regarded these distant exercises in Allied justice as little more than another example of how, in war and in peace, individuals lower in the hierarchy of authority had to pay for the misdeeds of men with real power. When all was said and done, it was obvious that only a small number of high army and navy officers, few high bureaucrats, no captains of the war economy, and virtually none of the civilian ideologues in politics, academe, and the media who helped prime the pump of racial arrogance and fanatical militarism paid for the terrible crimes that men on the front committed.
The victors channeled their concern with ultimate responsibility into “Japan’s Nuremberg,” the showcase proceedings against top leaders in Tokyo. Although the Tokyo trial proved but a murky reflection of its German counterpart, in sheer quantitative terms it was an impressive undertaking. The Nuremberg trial began on November 20, 1945, and concluded some ten months later. Following months of preparation, the Tokyo tribunal convened on May 3, 1946 and continued for thirty-one months. One inevitable consequence of its length was increasing public ennui on the issue of war crimes and war responsibility. “To be honest,” one Japanese newspaper observed in November 1948, when the judgment was about to be handed down, “the general public’s interest focused not on the proceedings but on the single point of what the verdicts would be.”11
Eleven justices presided at Tokyo as opposed to four at Nuremberg. At its peak, the prosecution numbered around one hundred attorneys supported by a staff of over one hundred Allied nationals and almost two hundred Japanese. In 818 court sessions over 417 days, the tribunal heard testimony from 419 witnesses and accepted depositions and affidavits from an additional 779 individuals—significantly more than at Nuremberg. Thousands of hitherto secret documents were collected under its jurisdiction, providing a record of policy making that could never have been assembled under other circumstances. This was supplemented by the interrogation of scores of former civilian and military leaders. Some 4,336 exhibits were admitted in evidence, totaling around 30,000 pages. The transcript of the trial, excluding exhibits and judgments, numbered 48,288 pages. As the Canadian diplomat and historian E. H. Norman observed, the most enduring legacy of the tribunal may have been this treasure trove of documentation.12
Under its charter, a simple majority judgment was sufficient to convict. In fact, when these immense proceedings finally limped to their close late in 1948, the bench was divided. A lengthy majority judgment endorsed by seven justices was read aloud in court between November 4 and 12. Submitted but not read were five individual opinions, one by Justice Jaranilla, who had signed the majority judgment but took the occasion to express his view that many of the individual verdicts were too lenient. An opinion by Justice Webb, the president of the tribunal, nominally in concurrence with the majority, severely criticized aspects of the judgment and the trial. Dissenting opinions were submitted by the judges representing France, India, and the Netherlands. That of the Indian justice, Radhabinod Pal, was as long as the twelve-hundred-page majority judgment.
By majority decision, seven former Japanese leaders went to the gallows. Sixteen were sentenced to life imprisonment, one to twenty years, and one to seven years. Five of the convicted “Class A” war criminals died in prison, but none of the others served out their terms. The former foreign minister Shigemitsu Mamoru was released in 1950 and returned to politics the moment the occupation ended. The remaining twelve were paroled between 1954 and 1956. In 1958, the ten men still surviving were granted clemency following consultation with the former victor powers.13
A private exchange between Justice Röling and General Willoughby revealed the ambiguous nature of this “milestone in legal development.” Despite their contrasting personalities, the idealistic Dutch jurist and the vigilantly conservative head of GHQ’s intelligence operations had become friends as the trial unfolded and frequently played tennis together. As Röling was leaving Japan, he paid a farewell visit to Willoughby. Although he had reservations about the conduct of the tribunal and had submitted one of the dissenting opinions (voting to acquit five of the twenty-five defendants, but supporting the death penalty for three defendants who were given life sentences), Röling never questioned the overarching ideals of Nuremberg and Tokyo. A self-described peace activist to the end of his life, he maintained a “favorable opinion” about the overall purpose and fairness of the trials. Willoughby did not. “This trial,” he bluntly told his friend, “was the worst hypocrisy in recorded history.”14
Others in the victors’ camp shared Willoughby’s view, although it was never possible to say so publicly. Even U.S. Brigadier General Elliott Thorpe, who played a major role in deciding which high-ranking Japanese should be arrested as war criminals, privately dismissed the Tokyo tribunal as “mumbo-jumbo.” As he explained it years afterward, he had “had the job of picking the war criminals to be tried—not the brutes and the physical criminals and murderers, but the political war criminals, those who came under that very disagreeable heading of those who used war as an instrument of national policy. I still don’t believe that was the right thing to do. I still believe that it was an ex post facto law. They made up the rules after the game was over. So we hanged them because they used war as an instrument of national policy.”
The bench at the International Military Tribunal for the Far East, where justices representing eleven countries presided over the trial of accused “Class A” war criminals.
Defendants listen with earphones to a Japanese translation of the lengthy majority judgment being read (in English) at the Tokyo tribunal in November 1948. All twenty-five defendants were found guilty, and seven, including former prime minister Tōjō Hideki (front row, third from left), were sentenced to death and executed the following month.
As Thorpe saw it, the “Class A” trials were fundamentally an exercise in revenge (“we wanted blood and, by God, we had blood”). The real reason for opposing these new rules of the game, however, was that they established an alarming rather than admirable precedent, whereby in the future anyone in a position of authority who had supported his country in waging a lost war might well find himself accused of war crimes by the victor. Another U.S. general who served in the occupation force later wrote that he “went to the court many times and came away each time with the strong feeling that it was wrong to try a man for doing his duty for his country and government in time of war…. I am against it one hundred percent.” He believed that these sentiments were widespread among his military colleagues.15
Professional soldiers were not the only ones who privately had grave reservations about the showcase trials. In March 1948, the State Department’s George Kennan visited Japan and included an acid commentary, bordering on the dyspeptic, in his top-secret report to the department’s Policy Planning Staff. Kennan observed that the war-crimes trials in general “have been hailed as the ultimate in international justice. There is no gain saying the fact that the trials have been procedurally thoroughly correct, according to our concepts of justice, and that at no time in history have conquerors conferred upon the vanquished such elaborate opportunities for the public defense and for vindication of their military acts.” He then proceeded to castigate the trials in Tokyo as “profoundly misconceived from the start.” Punishment of enemy leaders had been “surrounded with the hocus-pocus of a judicial procedure which belies its real nature.” Interminable delays (“endless and humiliating ordeals”) merely compounded the problem. He dismissed the tribunals as “political trials . . . not law.” In later conversations with the British, Kennan found agreement that the trials were “ill-conceived, psychologically unsound.”16
By the time the “Class A” trial in Tokyo ended, the world had changed. The victorious Allied alliance had been shattered by the Cold War; countries represented on the bench in Tokyo were engaged in civil wars and colonial wars in many parts of Asia; and U.S. occupation policy was in the process of turning away from the initial ideals of “demilitarization and democratization.” The indicted former Japanese leaders had been denounced for attempting to argue that their incursions abroad had been partly motivated by fear of communism; yet even as this argument was being stifled, the United States was creating its own national security state dedicated to the global containment of communism. The tribunal was quickly eclipsed by what a member of the prosecution staff referred to as “the darkening shadows of current events.” By 1948, hardly anyone was left who still believed that Nuremberg and Tokyo could provide the basis for a peaceful world grounded in a new order of international law and justice.17
This cynicism was conveyed in two symbolic acts of omission. Whereas the entire Nuremberg proceedings had been made available in a forty-two-volume bilingual (English and French) publication, no official publication ever emanated from Tokyo. Even the majority judgment, which summarized the prosecution argument in great detail, was not made readily accessible. Transcripts of the entire proceedings were distributed so haphazardly that no Allied government ever obtained a definitive set. Although the Japanese government collected materials produced by the trial, these were not readily available to the public. For all practical purposes, the record of the proceedings was buried.18
At the same time, led by the Americans, the victors moved swiftly to make clear that there would be no further Allied interest in the issue of ultimate responsibility for the recent war. Far more men had been arrested as “Class A” suspects and incarcerated in Sugamo Prison than were actually brought to trial, and it was initially stated that they would be indicted once the first showcase trial was concluded. Such indictments never occurred. As time passed, the number of imprisoned suspects declined, largely through dismissal of charges. As of June 1947, fifty remained in custody. By the time the Tokyo trial ended, the number had been reduced to nineteen. They included two immensely influential right-wing bosses, Kodama Yoshio and Sasagawa Ryōichi, as well as the brilliant and unscrupulous former bureaucrat (and future prime minister) Kishi Nobusuke, who had been the economic czar of the puppet state of Manchukuo and was accused, among other things, of being responsible for the enslavement of untold thousands of Chinese as forced laborers. On December 24, 1948, the day after the seven defendants were hanged at Sugamo, all nineteen remaining suspects were released on grounds of insufficient evidence. Ordinary people unversed in the subtleties of international law could be excused for failing to comprehend exactly where justice left off and political whimsy began.19
Although Japanese leaders understood that they would be held accountable for war crimes, they had no way of anticipating the ambitions of the Allies in this regard. Nothing in the Potsdam Proclamation indicated that the victors would put forward new norms of international law. In this regard, the Tokyo trial initially seemed to resemble the reformist occupation as a whole, being cut of new cloth and without historical precedent. Even General MacArthur was taken by surprise by the scope and innovation of this legal project—and deemed it excessive. He privately indicated that he thought justice could have been served by brief military proceedings focusing on the treacherous attack on Pearl Harbor.20
The Nuremberg precedent made this impossible. Although the victors in Europe hammered out the general parameters of war-crimes policy against Germany in June 1945, a month after Germany’s capitulation, the “Statute of the Nuremberg International Military Tribunal” that established the basic principles for the trial of Nazi leaders was not issued until August 8—the day the Soviet Union declared war on Japan, two days after Hiroshima, one day before Nagasaki. The Japanese had no time to analyze this, and they had no indication in any case that principles explicitly designed to bring Nazi leaders to justice would be transposed with only minimal change to Japan.
In fact, it took months for the Allies to clarify their policies regarding the treatment of Japanese war criminals. While multination commissions prepared recommendations on the issue, and interdepartmental American committees refined their internal proposals—while, indeed, Japanese were being arrested for war crimes—final policy remained uncertain. Early in November, General MacArthur authorized a curt memorandum to Washington complaining that whereas the definition of war criminals had been “comparatively simple” where the Nazis were concerned, in Japan “no such line of demarcation has been fixed.”21 Only in the closing days of 1945, a month after the appointment of Joseph Keenan as chief prosecutor, did Washington inform its allies that the Tokyo tribunal would “follow the Nuremberg pattern so far as it is appropriate in the Far Eastern Theater.” General MacArthur did not announce the jurisdiction and functions of the International Military Tribunal for the Far East until January 19, 1946, at which time he also issued the “Tokyo charter.” These guidelines, the counterpart to the Nuremberg charter, were drafted by the American prosecution staff and SCAP’s legal section. The other Allied powers were consulted only after it had been issued, and small amendments were made before the trial convened.22
On April 29, the prosecution formally lodged its indictment with the Tokyo tribunal. As stipulated by the rules of the court, it had previously been served on the defendants. It is a measure of both the complexity and the unwieldiness of the trial that although the indictment consisted of fifty-five counts charging the defendants with “Crimes against Peace, Conventional War Crimes and Crimes against Humanity,” and although the proceedings of the trial followed this indictment for over two years, the majority judgment ultimately dismissed forty-five of these counts as superfluous, redundant, or simply obscure.23
In both trials, considerable time and technical argumentation was spent by the prosecution attempting to establish a prior legal basis for “crimes against peace” and “crimes against humanity” in existing international laws and treaties. Despite such arguments, no one really denied the precedent-setting nature of the two tribunals. In the Tokyo charter, the critical definition of the tribunal’s jurisdiction was set forth as follows in Article 5:
The following acts, or any of them, are crimes coming within the jurisdiction of the tribunal for which there shall be individual responsibility:
a. Crimes against Peace: Namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
b. Conventional War Crimes: Namely, violations of the laws or customs of war;
c. Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such a plan.
The decisive formulation of crimes against peace was framed in the first count of the indictment, which accused the defendants of having engaged in a “common plan or conspiracy” to secure “military, naval, political and economic domination of East Asia and of the Pacific and Indian Ocean,” and to this end of having waged “wars of aggression” against countries opposing these purposes. This seemingly straightforward accusation rested on three bold premises. It assumed that a clear basis existed for distinguishing purely aggressive wars from wars undertaken out of genuine concern (however misguided) for the defense of legitimate national interests—and that Japan’s wars all fell into the former category. It postulated a comprehensive and continuous conspiracy to wage such aggressive wars. And, central to the ideal of establishing an effective legal and psychological deterrent against future “crimes against peace,” it affirmed that individual leaders could be held personally responsible under international law for activities previously regarded as acts of state.
Although the prosecution (following the rhetoric of the Potsdam Declaration) opened the trial by accusing the defendants of having embarked on a plan of world conquest, the majority judgment at Tokyo explicitly dismissed the notion that “the conspirators ever seriously resolved to attempt to secure the domination of North and South America.” The majority, however, did endorse the prosecution’s sweeping argument that top leaders had engaged in a criminal “conspiracy to wage wars of aggression” that commenced not in the period immediately prior to Pearl Harbor, as MacArthur would have had it; not in 1937, when Japan launched open war against China; not even in 1931, when the “Manchurian Incident” was used as a pretext for imposing control over Manchuria. The defendants were charged with having participated in a conspiracy that dated back to January 1, 1928, when plans to take over the Asian continent allegedly first began to be hatched.24 Within this eighteen years of turbulence and conflict in Asia, the prosecution ultimately accused the defendants of 756 separate acts constituting crimes against peace. The bulk of the prosecution’s time, and hundreds of pages in the majority judgment, were devoted to spelling out intimate details of policy making between 1928 and 1945, and arguing that virtually all of these did conform to a “common plan” to wage aggressive war.
Although “crimes against peace” thus received intense scrutiny, “crimes against humanity” remained less precisely developed as a legal concept. The latter charge had been formulated at Nuremberg primarily to enable the Allies to punish Nazi leaders for the genocidal policies that came to be known as the Holocaust. The Tokyo indictment, by contrast, contained no separate counts of “crimes against humanity.” In the course of the trial these tended to be treated as essentially coterminous with “conventional war crimes” and, indeed, with plain “murder.”25 The prosecution presented testimony regarding Japanese atrocities against both prisoners of war and civilians in often horrific detail, and contended that these murderous acts were so widespread, continuous, and similar in pattern that they reflected a common policy and plan emanating from or at least tolerated by the top leadership. Here, the tribunal pursued a charge that was not part of the Nuremberg charter: the concept of negative or vicarious responsibility—that is, of criminal liability for acts of omission rather than commission. Among the counts sustained by the tribunal was not only direct participation in the perpetration of war crimes in the form of orders or authorizations (count 54), but also having “deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance and prevent breaches” of the conventional laws of war (count 55).26
Other differences also distinguished the Tokyo trial from its German counterpart. The four presiding judges in Nuremberg were each backed by an alternate, whereas the eleven justices in Tokyo had no backups. On more than a few occasions, this resulted in absenteeism on the bench. The prosecution was directed by four “chief prosecutors” at Nuremberg, representing the four victorious countries conducting the trial, with a clear division of labor in the charges for which each was responsible. In Tokyo, there was a single chief prosecutor, Joseph Keenan. Although Keenan was assisted by ten associate prosecutors, one from each of the other ten countries represented on the tribunal, the American control of prosecution policy and strategy bordered on the absolute.
Four languages—English, German, French, and Russian—were employed simultaneously in the Nuremberg trial. In Tokyo, while the basic languages of the tribunal were English and Japanese, at least six other languages had to be accommodated. Communication was exceedingly complicated—“beyond comparison to the German case,” as a Japanese publication put it at the time—involving not only large numbers of translators and interpreters but also language monitors and arbitrators. Simultaneous interpretation proved impossible in Tokyo and, as a consequence, statements by witnesses or counsel were stopped at the end of each sentence until translations had been made. A member of the prosecution staff estimated that, “when witnesses were being examined, the speed of the trial was reduced to one-fifth of its normal pace.”27
To many observers, the major difference between the two trials lay in the nature of the defendants and the crimes they were accused of committing. There was no Japanese cabal of leaders comparable to Hitler and his henchmen. (Emperor Hirohito was, in fact, the only person in Japan who had been at the center of power during the entire course of the alleged “conspiracy.”) There were no organizational counterparts to the Nazi party and its affiliated criminal organs, such as the Gestapo and the SS (which made the charge of conspiracy easier to argue in the German case); nor, despite the horrendous litany of atrocities exposed in the Tokyo proceedings, including the massacres in Nanking and Manila, was there a real counterpart to the genocide planned and carried out by the Germans. This difference was emphasized by Justice Pal, who declared straightforwardly that “the case of the present accused before us cannot in any way be likened to the case ... of Hitler.” Justice Webb agreed that “the crimes of the German accused were far more heinous, varied and extensive than those of the Japanese accused.”28 Despite the grievous crimes of which they were accused, the defendants failed to exude the aura of evil personified that choked the courtroom where their Nazi counterparts were tried.
Of the twenty-two defendants in Nuremberg, three were acquitted and twelve were sentenced to death (one in absentia). There were no acquittals in the Tokyo tribunal, where twenty-three of the twenty-five defendants were judged guilty of participating in the “overall conspiracy” against peace (count I). Of the seven men sentenced to death, two were also found guilty, among other charges, of authorizing or permitting atrocities (count 54) as well as of failing to prevent such breaches of the laws of war (count 55), and three were judged guilty of the first but not the second of these atrocity charges. One defendant, the former general Matsui Iwane, was given the death penalty solely on “negative responsibility” grounds for having been derelict in preventing atrocities by troops under his command during the Nanking massacre. To the general public, the most surprising and shocking of the death sentences was that imposed on the former foreign minister and prime minister Hirota Kōki, who was found guilty of three charges, including overall conspiracy and having failed to prevent atrocities in China. Hirota was apparently sent to the gallows on the basis of the vote of only six of the eleven judges.29
The public may have become bored by the trial long before it ended, but when the verdicts were announced on November 12, 1948, there was a great deal to talk about, including the entirely unexpected submission of four separate opinions that were in one way or another critical of the tribunal’s conduct and conclusions. Nuremberg had not provided the faintest precedent for this. Although the separate opinions were not read aloud in court, their essence was noted by the media. Justice Pal had acquitted all defendants, while Justice Röling had found five (including Hirota) not guilty. Two justices, Webb and Henri Bernard of France, had found the tribunal flawed and compromised by the decision not to bring the emperor to trial.30
Given the intense campaign to present Hirohito as a champion of peace, this high-level evocation of his war responsibility was startling. For over two years, and with but one momentary lapse, all of the defendants accused of “Class A” war crimes had meticulously avoided saying anything that might seem to implicate their sovereign. Now, Justices Webb and Bernard revealed that they had not found this vigilant loyalism persuasive. With remarkable bluntness, Webb criticized the fact that “the leader of the crime, though available for trial, had been granted immunity.” He observed that “the Emperor’s authority was required for war. If he did not want war he should have withheld his authority.” Despite this, Webb supported the majority judgment, although he did suggest, albeit with no great eloquence, that the death sentences might be commuted on review.31
Justice Bernard found the proceedings so unfair and technically flawed that he deemed it impossible to pass any judgment whatever. He deplored the “abominable crimes” committed by the Japanese and acknowledged that at least some of the defendants bore heavy responsibility for those transgressions. The absence of the emperor, however, struck him as so glaring an inequity that condemning the defendants was impossible. Japan’s crimes against peace “had a principal author who escaped all prosecution and of whom in any case the present Defendants could only be considered as accomplices.” Measuring the emperor “by a different standard” not only prejudiced the case against them, but also undermined the cause of international justice.32
These were unsettling opinions, and the emperor and his Japanese and American entourages lost little time in defusing them. The very day the verdicts were announced, the emperor wrote General MacArthur reassuring him that he had no intention of abdicating.33 Eight days later, Chief Prosecutor Keenan reiterated that there were no grounds for trying the emperor as a war criminal. And on November 25, the press reported three noteworthy events of the previous day. Despite pleas from representatives of several of the victorious nations that he commute the sentences, MacArthur had approved the majority verdict; Keenan had enjoyed the rare privilege of being invited to a private lunch with the emperor at the imperial palace; and Tōjō Hideki, facing death, had delivered what one paper called his “last message to the world.”
Taken together, this was a memorable triptych. Had MacArthur commuted the nonunanimous death sentences, he would have given credence to Webb’s argument that, as “the leader of the crime,” the emperor should have been indicted; and this was inconceivable.34 That the emperor cordially dined with the chief prosecutor on the day his loyal servants saw their sentences confirmed did not perhaps seem in the best of taste, but time was short. Keenan was leaving town. The two men spent three hours in private conversation—leaving the press to speculate that the emperor had desired to express his gratitude to Keenan for affirming his innocence.
And Tōjō? Tōjō, no more contrite than his sovereign, did not bend like him. His “last message” challenged the basic premise of the judgment: that Japan’s road to war had been undertaken without provocation or legitimate national security concerns. “Peoples of all the nations of the world,” Tōjō was quoted as saying, “absolutely should not abandon the right to initiate wars of self-defense.”35
The death sentences in the Tokyo judgment were appealed to the Supreme Court of the United States, which on December 20 ruled that it had no jurisdiction in the case. Three days later, the seven condemned defendants were hanged wearing, as a SCAP press release explained, “United States army salvage work clothing completely devoid of insignia of any kind.”36 They died with the solace that they had been a shield to their emperor to the very end, and they left a legacy of lingering controversy.
Like Nuremberg, the Tokyo trial was law, politics, and theater all in one. Unlike Nuremberg, it “was very much an American performance,” as Justice Röling put it many years later. “It was like a huge-scale theatrical production,” the Dutch jurist observed. “I didn’t see that at the time, and I didn’t see that there were more ‘Hollywoodesque’ things around than there should have been.”37
Others did see this. In its coverage of the opening sessions, Time magazine was impressed by how the stage was set. “Much care had gone into fitting the courtroom with dark, walnut-toned paneling, imposing daises, convenient perches for the press and motion-picture cameramen. The klieg lights suggested a Hollywood premiere.” The lights dazzled everyone and often were described as almost blinding—not so much perhaps in the manner of a movie premiere as of a film being made. Indeed, much of the time the proceedings of the trial were being filmed. The Japanese too spoke of “lighting of the level of Hollywood,” albeit with more derisive intent than Time.38
The very building in Tokyo’s Ichigaya district in which the performance unfolded conveyed a certain sense of dramatic irony. Formerly the auditorium of the elite Imperial Army Officers School, Japan’s counterpart to West Point, by war’s end it was serving as temporary headquarters for the Army Ministry and the Combined General Staff. Following SCAP’s orders, the structure was renovated by the Japanese government at a cost of almost 100 million yen, an enormous sum. Both air conditioning and central heating were introduced. Seats were provided for five hundred spectators, three hundred of them reserved for nonofficial citizens of the Allied countries and the remainder for Japanese.
The spectator’s gallery provided sight lines on an enormous bullpen in which the defendants sat as a group on one side, the judges on another, and a small army of functionaries—court staff, translators, prosecutors, and the defense attorneys assigned to each defendant—filled the floor in front of them. American military police, frequently wearing white helmets, checked people in and stood sentinel. Usually towering over the defendants, they provided an irresistible photo opportunity for depicting the mighty and the fallen. The defendants were quite literally dwarfed by the setting, and the relationship between the diminished elderly men in the dock and the enormity of the crimes they were accused of committing sometimes seemed to border (like so much else in the occupation) on the surreal.
The defendants not only had access to Japanese counsel, but were provided—at their own belated request—with American attorneys who assumed their duties in mid-May, shortly before the trial began. Arguing that they had not been given sufficient time to prepare their cases, six of them, including the chief American defense attorney, resigned abruptly one month later, in the trial’s opening days. Those who stayed the course eventually served their clients reasonably well. When one considers wartime sentiments in favor of summary execution of the “archcriminals,” the opportunity given the defendants to respond to the charges against them was impressive. Unlike the Nuremberg precedent, the Tokyo charter did not prohibit the defense from challenging the tribunal, and—led by two prominent Japanese lawyers, Takayanagi Kenzō and Kiyose Ichirō—the defendants took advantage of this to question the very legitimacy of the tribunal and to challenge the validity of the most fundamental charges in the indictment. Although these challenges were predictably dismissed, the defense lawyers laid down arguments that remained fundamental to all subsequent criticisms of “victor’s justice.” Later, after the prosecution spent some seven months presenting its case, the defense was given even more time (including 187 days in court) to respond.39
The appointment of American counsel reflected one of the controversial aspects of the tribunal: its grounding in Anglo-American trial procedure rather than the European traditions in which most Japanese legal specialists had been trained. The basic language of the trial was English, and seven of the eleven presiding judges, including the president of the tribunal, were trained primarily in Anglo-American law. Japanese attorneys operated at a severe disadvantage in this situation.40 One strikingly Americanized dimension of the indictment was the concept of “conspiracy” that lay at the very heart of the prosecution’s case. Around the end of 1944, Secretary of War Stimson and his aides had concluded that adding conspiracy to the list of war crimes charges would expedite prosecution of Nazi leaders as well as lower-level members of Nazi organizations—something lawyers and historians have debated ever since.41 However valid the conspiracy argument may have been in the Nazi case, it was a highly artificial basis for explaining why and how imperial Japan went to war. Justice Pal pointed out numerous instances in which it was more plausible to see Japan’s leaders engaged in ad hoc responses to what they perceived as threats to their nation’s security. On this particular point, subsequent scholarship generally has supported his skepticism. Declaring that documentary materials introduced revealed an eighteen-year-long “common plan” to wage aggressive war was much closer to propaganda than to serious historical analysis.42
The more technical criticism of the conspiracy charge was that it did not exist in international law prior to 1945. In his separate opinion, Justice Webb was unambiguous on this particular point. “International law, unlike the national laws of many countries,” he observed, “does not expressly include a crime of naked conspiracy…. So too, the laws and customs of war do not make mere naked conspiracy a crime.” Webb acknowledged that it was entirely reasonable to argue that conspiracy to commit grievous international transgressions should be a crime under international law. That argument did not, however, alter the fact that the tribunal in Tokyo “has no authority to create a crime of naked conspiracy based on the Anglo-American concept; nor on what it perceives to be a common feature of the crime of conspiracy under the various national laws.” To do so was, as he put it, “nothing short of judicial legislation.”43 Nevertheless, Webb’s court upheld the conspiracy charge as presented in count one of the indictment.
Merely by raising the issue of “judicial legislation,” Webb implicitly called into question the postwar vision of establishing a new international legal order, for the ideal of outlawing “crimes against peace” posed a formidable conundrum. If the trials of Nazi and Japanese leaders were indeed precedent setting, did this not imply that these leaders were being accused of crimes that had not previously been established in international law? How was it legally possible to hold the accused responsible, as Justice Röling did in the opening words of his separate opinion, “for certain events in world history, on charges almost unknown before this war”? At issue was a sacrosanct principle familiar to all participants in these trials: that “without a law there can be no crime, without a law there can be no punishment” (nullum crimen sine lege, nulla poena sine lege).44
Sometimes the prosecution frankly acknowledged its path-breaking agenda. In his introductory presentation, Joseph Keenan freely conceded that the trials were “without precedent” in holding individuals responsible under international law for acts of state.45 More generally, however, as at Nuremberg, the prosecution attempted to present its indictment as but a bold reformulation of concepts and obligations already embedded in existing laws and treaties. The prohibition against “wars of aggression,” it was argued, had been established in the Kellogg-Briand Pact of 1928, to which Japan had been a signatory. Furthermore, as Keenan put it in his opening statement, “the offenses of these accused resulted in the unlawful or unjustifiable taking of human lives, which constituted murder, the oldest of all crimes, and the punishment that we ask to be inflicted is punishment commensurate with such offense.”46
In its opening challenge, the defense focused on precisely the issue of “retroactive” or “ex post facto” crimes. “Aggressive war is not per se illegal,” the defense contended, “and the Pact of Paris of 1928 renouncing war as an instrument of national policy does not enlarge the meaning of war crimes nor constitute war a crime.” Predictably, the defense also challenged the legality of holding individual leaders responsible for acts of state. “War is the act of a nation,” it was argued, “for which there is no individual responsibility under international law.” It therefore followed that the provisions of the Tokyo charter were “ ‘ex post facto’ legislation and therefore illegal.” These were not frivolous arguments. In considerable part, Justice Pal’s dissent rested on a strict interpretation of the limitations of existing international law vis-à-vis national sovereignty and national laws. In essence, he concluded that the defense had it right. The defendants were being tried for “crimes” that did not exist as such under international law prior to the defeat of the Axis powers.47
The Tokyo trial proved vulnerable to criticism on other grounds as well. A certain political capriciousness had been involved in deciding who would be indicted for “Class A” war crimes. (In the prosecution’s opening statement, Joseph Keenan himself frankly and rather surprisingly acknowledged that “we have no particular interest in any individual or his punishment. They are representative in a certain sense of a class or group.”) Even if one went along with the understanding that this was to be a heuristic or showcase trial in which “representative” leaders were to be held accountable for their war responsibility, the absence of certain groups and crimes was striking. No heads of the dreaded Kempeitai (the military police) were indicted; no leaders of ultranationalistic secret societies; no industrialists who had profited from aggression and had been intimately involved in paving the “road to war.”48 The forced mobilization of Korean and Formosan colonial subjects was not pursued as a crime against humanity, nor was the rounding up of many tens of thousands of young non-Japanese who were forced to serve as “comfort women” providing sexual services to the imperial forces. The Americans who controlled the prosecution chose to grant blanket secret immunity to one group of Japanese whose atrocious crimes were beyond question, namely, the officers and scientific researchers in Unit 731 in Manchuria who had conducted lethal experiments on thousands of prisoners (they were exempted from prosecution in exchange for sharing the results of their research with the Americans). The prosecution also did not seriously pursue evidence concerning the Japanese use of chemical warfare in China.49
Whimsy, or at least casualness, was also evident in appointments to the bench, where the most incisive and best-remembered justices were Röling and Pal, the authors of the two major dissenting judgments. None of the eleven judges in Tokyo had distinguished himself as a specialist in international law. The original American appointee departed in a funk in July 1946 after learning that his qualifications had been belittled; his replacement left no mark. The Soviet judge, formerly a commissioner of justice under Lenin, had participated in the Stalinist mock trials of the mid-1930s. He spoke neither of the basic languages of the tribunal (his only two words of English, it was said, were “Bottoms up!”). The French judge had spent the interwar years in colonial service in West Africa, and according to Röling also did not speak English. The Chinese justice, educated in the United States, had published books on constitutional law but had no prior experience as a judge. The Filipino justice was a survivor of the Bataan death march, which in a normal court would have led to his immediate disqualification. The president of the tribunal had previously been involved in prosecuting Japanese for war crimes in Australian military tribunals in New Guinea. Defense challenges to the latter two appointments were rejected.50
Two judges, Pal and Jaranilla, were appointed at the last moment, and both clearly knew how they intended to vote before being seated. Token “Asians,” they were mirror opposites.51 Justices Pal and Webb were noticeably absent from portions of the proceedings. Perhaps the most striking aspect of the conduct of the bench, however, lay in the fact that the eleven justices never collectively met in chamber to seriously discuss and deliberate the final judgment, no less how it should be argued and presented. Instead, as Röling described it, seven justices “just decided among themselves to write the judgement. . . . The seven organized the drafting, and presented the results to the other four as a fait accompli. ”52
Some disagreements concerning whether the trials were “fair” reflected differing premises concerning the proper procedures of a military tribunal. Even Secretary of War Stimson never imagined that such trials would be conducted with all the procedural regulations and guarantees that prevailed in civilian courts or even in military courts martial. The vehicle of the military tribunal or “military commission” was chosen precisely because it permitted the prosecution to follow procedures impermissible in other venues, particularly involving the control of admissible and inadmissible evidence.53
In the context of the times, this seemed entirely reasonable. To begin with, the victors had every reason to expect the enemy to attempt to destroy or falsify evidence—as, in fact, happened.54 The victors also feared that the defendants might attempt to use the trials as a propaganda platform to reaffirm the legitimacy of their actions. To prevent this, it was deemed necessary to place restraints on the testimony or “evidence” they could introduce in the name of self-defense. The Tokyo charter explicitly declared that “the Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value.” The war crimes trials were not civilian proceedings, and the “archcriminal” defendants obviously were not presumed innocent by those who drafted the charter.
The use of loose rules of evidence as defined by the victors proved, however, to be a gateway through which arbitrariness and unfairness entered the trials. The tribunal permitted the prosecution to introduce material that might have been rejected in more rigorous hearings, including hearsay, diary excerpts, unsworn statements, copies of documents where the originals were missing, and affidavits in situations where authors were not available for cross-examination. At one point, Justice Webb offered close to a lampoon of what it meant to be unbound by “technical rules of evidence.” There was no way of really telling what might be admissible from day to day, he explained, because there was no way of telling who would be present on the bench. “Some times we have eleven members; some times we have had as low as seven,” the president of the tribunal observed. “And you cannot say, that on the question of whether any particular piece of evidence has probative value you always get the same decision from seven judges as you would get from eleven. . . . You cannot be sure what decision the court is going to come to on any particular piece of evidence.”55
What was sure, however, was that the prosecution commanded vastly greater resources than the defense, and could usually count on being favored by the bench on any given issue.56 In a trial of Japanese defendants where the basic language was English, for example, access to capable translators was crucial. By one count, when the trial began the prosecution had 102 translators at its disposal and the defense three.57 The prosecution largely controlled the submission of Japanese documents in translation, and it was only on specific request that these translations were examined. Justice Roling recalled one instance in which a text seemed odd to him and, on being rechecked, proved to have been incorrectly translated. When he asked that a corrected version be introduced into the record, his request was turned down on the grounds that it was too troublesome to reopen the issue. Testimony by the defendants reached the bench entirely through interpreters, and the English interpretations tended to be more cryptic than the original statements. No one suggested that translations and interpretations were deliberately skewed or even fundamentally inaccurate, but no one on the victor’s side ever dwelled much either on what it meant to be judged (and, for seven men, condemned to death) in translationese.58
As Justices Webb and Bernard emphasized in their opinions, the most flagrant control of evidence involved the prosecution’s single-minded campaign to insulate the emperor. The tribunal was distinguished not only by the physical absence of the emperor and the careful exclusion of any sustained references to him, but also by the absence of testimony by him.59 The manipulation of “victor’s evidence” to save him had no counterpart in Nuremberg—and received no challenge from the defense in Tokyo, even though the emperor’s testimony might have benefited some of the defendants.60 On the contrary, from the moment of their incarceration the defendants, who interacted closely in prison, resolved to do everything possible to protect the emperor—“for the future of the Japanese race,” as Shigemitsu Mamoru put it. When Keenan announced on June 18, 1946, that the emperor would not be brought to trial, his loyal servants in Sugamo wept openly. Shigemitsu, the former diplomat, wrote a celebratory poem to the effect that, because his lord was a god, he was untouchable by the enemy. Kido, who had spent much time pleading the emperor’s case with Keenan and the prosecution staff, rejoiced that, “with this, my mission is complete.”61
In fact, the defendants’ loyalist mission was not yet complete. Defense and prosecution alike labored to keep the emperor invisible for the next several years. On the part of the defendants, this vigilance faltered on only one occasion—December 31, 1947—when Tōjō frankly testified that it was inconceivable for him or any subject to have taken action contrary to the emperor’s wishes. In response to this unintentionally candid and damaging observation, Keenan immediately arranged, through the emperor’s own close advisers, that Kido be contacted in prison and urged to tell his fellow defendant to rectify his potentially incriminating comment as soon as possible. Other intermediaries were used as well. Tōjō was happy to comply, and the opportunity to do so arose in the courtroom a week later. On January 6, in the course of an exchange with Keenan, Tōjō retracted his earlier statement.62
Although the defendants were happy to collude in a tacit pact to protect the emperor, the tribunal adopted other policies on impermissible testimony that ran counter to their wishes. The defense was not allowed to pursue certain lines of reasoning that most defendants believed essential to their case—for in the eyes of the victors, and in the eyes of the court, such arguments were simply “propaganda.” None of the defendants accepted for a moment the accusation that they had been engaged in an eighteen-year-long conspiracy to wage “wars of aggression.” On the contrary, they believed to the end with all apparent sincerity that their policies, however disastrous in outcome, had been motivated by legitimate concerns for Japan’s essential rights and interests on the Asian continent. As the men in the dock saw it, their country’s security had been imperiled by a succession of truly alarming developments: political chaos and economically crippling anti-Japanese boycotts in China; Soviet-led communist revolts and subversion there and elsewhere; American and European protectionist trade policies; global trends toward autarchic “bloc economies”; and coercive Western economic policies in the months prior to Pearl Harbor. Such concerns could not be excluded from mention, but the defense was not allowed to develop the case that they had validity—or that, for example, the wartime rhetoric of Pan-Asianism rested on legitimate Japanese and Asian grievances vis-à-vis the “White peril” of European and American imperialism. Nor, of course, was the defense allowed to introduce testimony or evidence purporting to show that the victors had also engaged in activities comparable to the “crimes” the defendants were accused of committing—such as breaking treaties or violating the conventional laws of warfare.63
Curtailing such defense arguments was fully consistent with Stimson’s reasonable desire that the punishment of war crimes be stern and that trials not be allowed to degenerate into propaganda platforms for the accused. It was fully in accord with the controls over acceptable “evidence” granted the tribunal by the Tokyo charter, following the Nuremberg precedent. It was also the juridical counterpart of the general policy of occupation censorship—with all the absurdities that accompanied it. Before the Tokyo tribunal convened, Winston Churchill had already denounced the erection of an “Iron Curtain” in Europe. Before the trial was halfway over, the United States had introduced its anticommunist Marshall Plan. As the proceedings in Tokyo were drawing to a close, the Kuomintang government of China, whose representative sat on the tribunal, was fleeing to Taiwan, and American politicians were in a panic verging on hysteria at the impending “loss” of China. Yet even amid this growing sense of a global Armageddon between communist and anticommunist forces, the erstwhile “allies” of World War II were sitting in judgment in Tokyo and refusing to let the defendants pursue the argument that their policies on the Asian continent had been motivated, in great part, by fear of both chaos and communism in China.64
Ideologically, this was a convoluted business out of which odd bedfellows emerged. Thus, the reactionary General Willoughby found the trial hypocritical, as did Justice Pal, an Indian nationalist. What the two men shared in their scorn for the tribunal—with, indeed, its Soviet judge serenely seated on the bench—was anticommunism.65 This was but one of the anomalies of victor’s justice.
Even as men of good will spoke of establishing an international order in which aggression would not go unpunished, their own judicial proceedings mirrored a world still skewed by the harsh realities of race, power, and powerlessness. This was apparent in the nature of the “international” composition of the tribunal. Although the countries Japan had invaded and occupied were all Asian, and although the number of Asians who had died as a consequence of its depredations was enormous, only three of the eleven judges were Asians. Even this exceeded the original intent of the victors. Initially, only nine justices were envisioned, with only one Asian—the representative of China—among them. Justices Pal and Jaranilla were added only after agitation from their respective countries. The trial was fundamentally a white man’s tribunal.66
The grudging inclusion of two additional Asian judges reflected specific colonial circumstances. The Philippines, an American colony since 1898, had been promised independence in 1946. India, long the crown jewel of the British empire, was to become independent in 1947; during the early part of the Tokyo trial, Justice Pal actually represented a still unliberated country. Indonesians were not so favored, although as many as a million or more of them may have died under the brutal regimen of forced labor the Japanese imposed after occupying the “Netherlands East Indies.” The Dutch presumably represented the Indonesians at the Tokyo trial. Asian peoples who suffered at the hands of the Japanese in Vietnam, Malaya, and Burma also had no representatives of their own. The French nominally spoke for the “Indochinese.” In theory, the British did likewise for the Burmese, the peoples of Malaya, and their colonial subjects in Hong Kong.
It was especially perverse that no Korean served as judge or prosecutor, although hundreds of thousands of colonized Korean men and women had been brutalized by the Japanese war machine—as “comfort women,” as laborers forced to work in the most onerous sectors of mining and heavy industry in Japan, or as lowly conscripts in the military. Korea was not a bona fide sovereign nation at the time, nor was it clear when it would be. For the duration of the Tokyo trial, Japan’s former colonial subjects remained under alien occupation in a land divided between the United States and the Soviet Union. They were not allowed to judge their former overlords and oppressors or to participate in preparing the case against them.
The plight of the Koreans was, in its way, emblematic of the larger anomaly of victor’s justice as practiced in Tokyo. It called attention to the fact that the recent war in Asia had taken place not among free and independent nations, but rather on a map overwhelmingly demarcated by the colors of colonialism. Colonialism, and imperialism more generally, defined the twentieth-century Asian world in which Japan was accused of having conspired to wage aggressive war. Japan’s colonial and neocolonial domain (Formosa, Korea, and Manchuria) existed alongside the Asian overseas possessions of four of the powers that now sat in judgment: Britain, France, the Netherlands, and the United States. China itself, nominally sovereign, had been a congeries of Japanese, European, and American “special rights and interests” and was not even formally freed from its “unequal treaties” with the United States until the war was almost over.
The tribunal essentially resolved the contradiction between the world of colonialism and imperialism and the righteous ideals of crimes against peace and humanity by ignoring it. Japan’s aggression was presented as a criminal act without provocation, without parallel, and almost entirely without context. On occasion, the prosecution seemed literally blind to the Asia most Asians knew. In his opening statement, Chief Prosecutor Keenan actually claimed that the Japanese had “determined to destroy democracy and its essential basis—freedom and the respect of human personality; they were determined that the system of government of and by and for the people should be eradicated and what they termed a ‘New Order’ established instead.”67
This was the sort of light-headed American effusiveness that made more sober observers among the victors cringe. It remained for Justice Pal, however, to highlight the double standards that underlay the trial. “It would be pertinent to recall to our memory that the majority of the interests claimed by the Western Prosecuting Powers in the Eastern Hemisphere including China,” he observed in speaking of Japan’s takeover of Manchuria, “were acquired by such aggressive methods” as the Japanese were accused of employing. He also commented, with no little sarcasm, on the ways in which the positive rhetoric of imperialism and colonialism of the Europeans and Americans became transmogrified when associated with Japan: “As a program of aggrandizement 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 white man’s burden’, and may give it the name of ‘aggressive aggrandizement’ pure and simple.”68
The Indian justice took palpable pleasure in suggesting the hypocrisy of the victors’ case. He quoted England’s prestigious Royal Institute of International Affairs at some length, for example, on how the Japanese had followed the precedents of European imperialism, sometimes “with almost pedantic exactitude.” Similarly, in discussing the “Amau Doctrine” of 1934, in which Japan had enunciated its special rights and interests in China, Pal observed that this definition of national interest “finds obvious precedent in the conduct of the United States in pursuance of the Monroe Doctrine.”69 The prosecution’s attempt to condemn the Japanese for conspiring to promote feelings of “racial superiority” through their educational system did not exactly impress him—as it had the prosecutors—as something for which the Japanese could be uniquely condemned. On this issue, he was more rueful than bitter. He quoted the historian Arnold Toynbee on how “race-feeling” had been fundamental to modern Western society, and pointed to the discrimination that Japanese and other Asians had endured in recent times at the hands of the dominant white powers. Ultimately, though, he saw the inculcation of feelings of racial superiority as “a dangerous weapon in the hands of . . . designing people from the earliest days of human history.”70
Although Pal’s dissent did not appear in translation until 1952, after the occupation ended, it resonated with the deeply held feelings of many Japanese.71 Pal did not condone Japan’s actions—nor, with hindsight, did the majority of Japanese. But apart from acknowledging the horror of “conventional” war crimes and atrocities, and apart from strong sentiment that the war had been stupid, many Japanese, like the Indian jurist, found it difficult to regard their country’s actions as having been unique. Unsurprisingly, they were more inclined than the victors to see the war in terms of power politics in an unstable imperialist world.
That the powerless remained powerless—or, at least, the victorious “Great Powers” would have had them remain so—was apparent not only in Korea but also in the southern reaches of Asia so recently occupied by Japan, where the European victors were engaged in violent campaigns to reimpose control over their former colonies. The boggling fatuity of Keenan’s opening denunciation of the Japanese for having denied the peoples of Asia “government of and by and for the people” lay not merely in the fact that nothing of the sort had existed under the old European and American imperiums, but in the fact that the French were then fighting their way back into Indochina, the Dutch into Indonesia, and the British into Malaya. No American chief prosecutor was about to argue that these bloody aggressions constituted a crime against peace and humanity—particularly since in each case his government supported these death gasps of the old imperialism.
From the Japanese perspective, the Soviet presence on the tribunal constituted a particularly egregious aspect of victor’s justice. The Soviet Union, after all, had not exactly been an exemplary model of peace and justice (although many leftists believed otherwise). Closer to the bone, the Soviets were guilty of the crudest sort of hypocrisy. Japan was being accused of having violated sacred treaty obligations, but the U.S.S.R. had qualified to sit in judgment in Tokyo only by ignoring its bilateral neutrality pact with Japan in the final week of the war. And although the most harrowing revelations of the Tokyo trial involved Japanese atrocities against civilians and prisoners, it was known that the Red Army had engaged in widespread abuses of civilians in Manchuria. Throughout the duration of the trial, moreover, hundreds of thousands of Japanese prisoners remained in Soviet hands, their circumstances unknown. As it turned out, the number of Japanese prisoners who would die in Soviet hands was much larger than the number of American and British Commonwealth prisoners who perished so miserably as prisoners of the Japanese.
Against the Americans, the most predictible accusation of double standards rested on the argument that the terror bombing of Japanese cities, and the use of the atomic bombs in particular, were also crimes against humanity. Justice Pal made this argument with, even for him, unusual acidity. After bringing up a notorious statement that the German Kaiser Wilhelm II had conveyed to the Hapsburg emperor Franz Joseph in World War I (“Everything must be put to fire and sword; men, women and children and old men must be slaughtered and not a tree or house be left standing”), he introduced this statement into his dissenting opinion:
In the Pacific war under our consideration, if there was anything approaching what is indicated in the above letter of the German emperor, it is the decision coming from the allied powers to use the atom bomb. Future generations will judge this dire decision. History will say whether any outburst of popular sentiment against usage of such a new weapon is irrational and only sentimental and whether it has become legitimate by such indiscriminate slaughter to win the victory by breaking the will of the whole nation to continue to fight. ... It would be sufficient for my present purpose to say that if any indiscriminate destruction of civilian life and property is still illegitimate in warfare, then, in the Pacific war, this decision to use the atom bomb is the only near approach to the directives of the German Emperor during the first world war and of the Nazi leaders during the second world war. Nothing like this could be traced to the credit of the present accused.
Justice Jaranilla took strong exception to this line of argument in his separate opinion. “If a means is justified by an end, the use of the atomic bomb was justified,” he wrote, “for it brought Japan to her knees and ended the horrible war. If the war had gone on longer, without the use of the atomic bomb, how many more thousands and thousands of helpless men, women and children would have needlessly died and suffered, and how much more destruction and devastation, hardly irreparable [sic], would have been wrought?” Taken together, Pal’s and Jaranilla’s comments essentially define the parameters of the controversy over the use of the bomb that persisted through the decades that followed.72
Pal’s was an extraordinarily severe accusation, for it amounted to saying that in the war in Asia the only act comparable to Nazi atrocities was perpetrated by the leaders of the United States. No other justice went so far, but Justice Rölling was also of the opinion that the air raids that culminated in the atomic bombings had violated the laws of war. Many Japanese, Röling concluded, felt similarly. In his contacts with students, he recalled, “The first thing they always asked was: ‘Are you morally entitled to sit in judgment over the leaders of Japan when the Allies have burned down all of its cities with sometimes, as in Tokyo, in one night, 100,000 deaths and which culminated in the destruction of Hiroshima and Nagasaki? Those were war crimes.”73
The hypocrisy of the victors would soon become a major thread in neonationalist thinking and Pal’s dissent a well-thumbed bible for critics of the “Tokyo-war-crimes-trial view of history.” That the American government itself soon embraced many erstwhile war criminals in the common cause of anticommunism—Shigemitsu Mamoru and the right-wing godfather Kodama Yoshio even before the occupation ended, and Kishi Nobusuke while prime minister from 1957 to 1960, to give but three examples—gave a perverse binational coloration to this repudiation of the Tokyo tribunal’s verdict.74
To many Japanese, however, the crimes revealed by the trial, compounded by the perception that this was a world gone mad with violence and that such crimes against peace and humanity were not unique to Japan, reinforced the deep aversion to militarization and war that had come with defeat. The cynicism about the trial of those who took such a position cut differently from that of the neonationalists. As one left-wing intellectual wrote shortly after the occupation ended, what had begun as one of the great “revolutionary trials” of history turned into a “caricature” of justice. It became little more than a “technical trial,” an exercise in retaliation against some twenty-odd men, a failure inseparable from the larger failure of the Americans to promote a fully democratic revolution. Small wonder that “too few people derived from it something that could become a true standard of behavior.” However, he added, this did not mean that the ideals of peace and justice were now irrelevant. On the contrary, it was all the more important to cherish them, precisely because the trial had made their fragility so clear.75 Where these ideals could be cherished, of course, was in the “renunciation of war” provisions of the new constitution.
The Japanese themselves were one of the Asian peoples excluded from participating in the prosecution of war criminals. Allied logic here was clear: the accused should have no right to judge themselves, only to marshal a defense. The assumption, of course, was that virtually all Japanese bore some measure of responsibility for the war, and so none could be trusted to pursue the issue of war responsibility impartially where their compatriots were concerned. Such reasoning was understandable in the emotional heat of the time, particularly given the lack of serious resistance in Japan to the war regime apart from a small number of Communists. Still, excluding Japanese from any formal role in the investigation and prosecution of war criminals may have been shortsighted.
We enter here into historically perilous imaginings of what might have been. In this instance, though, we can at least turn to some participants in the events of the time who did give thought to a more active Japanese role in prosecuting war crimes. Formal involvement of this sort—possibly even extending to a presence on the bench (something Justice Röling, at least, considered, though only well after the fact)—could have removed some of the stigma of victor’s justice from the trials.76 It might also have strengthened popular acceptance of the idea that the Japanese, more than anyone else, had to take responsibility for their crimes. Failure to promote this was congruent with the larger failure of occupation authorities to recognize that their penchant for monopolizing authority could be counterproductive.
Early on, there was considerable grass-roots support for such involvement in uncovering the country’s war crimes. As early as mid-September 1945, the shocking revelations of atrocities committed by Japanese troops led newspapers such as the Asahi to recommend that the Japanese should compile their own lists of prospective war criminals, since these would be longer than those the Allies could conceivably come up with, and possibly also conduct their own trials.77 Many readers strongly agreed. By mid-October, the number of letters attacking “those responsible for the war”—not only the military cliques, but also bureaucrats, the police, and leaders of big business and finance—had risen sharply. The Asahi’s editors expressed surprise at how many people were urging that the Japanese punish their war criminals. Long before Prince Konoe and former privy seal Kido were ordered arrested, the paper was editorializing that civilians like them, and not just the so-called military cliques, should be included among the accused. Early in December, when the Allies’ public list of prominent accused war criminals had reached 218 individuals, Tensei Jingo, the paper’s most admired column, said this was far too few.78 The confidential reports of the State Department’s representative in Tokyo took note of such trends. “The general mood of the Japanese people,” George Atcheson cabled Washington in mid-December, “is strongly in the mood of fixing war responsibility on the major suspects. Bitterness on account of Japan’s defeat and an apparently growing realization that Japan should not have undertaken aggressive warfare has created a strong resentment against Japanese leaders.”79
Such sentiments were generally endorsed on the political left. Marxists and Communists subscribed readily to a critique of Japanese “wars of aggression” dating back at least to the Manchurian Incident of 1931, and their early postsurrender campaigns called on “the people” to root out war criminals and collaborators at all levels of society. Although advocacy of people’s tribunals did not become part of the Communist Party platform, prominent left-wing intellectuals such as Hosokawa Karoku gave early thought to encouraging “the trial and punishment by the Japanese people themselves of those responsible for the war.” (Hosokawa actually envisioned this while in jail for thought crimes, awaiting liberation by the Allied victors.) On the eve of the Tokyo tribunal, some Japanese did succeed in warning against complacently leaving such trials to the Allies, urging that this “be done by the hands of the Japanese people as well.” Others were less successful in getting this message out. At a public symposium in December 1946, a lawyer criticized the tribunal for excluding from the bench or prosecution staff Japanese who had opposed the war—and found the entire text of his speech suppressed by GHQ’s censors when submitted for publication. In 1948, as the tribunal drew toward its conclusion, some progressive intellectuals renewed the call for people’s courts and Japanese trials, only to find, by this date, that they could arouse no public interest whatsoever.80
At the other end of the political spectrum, the government also considered conducting trials. Although there was never the faintest chance that the victors would accept this idea, it nonetheless received attention in high circles before and after the surrender. It first surfaced on August 9, during an internal cabinet struggle over whether or not to surrender, when the military vainly attempted to make the right to conduct its own trials a condition for accepting the terms of the Potsdam Proclamation.81 When SCAP announced the first arrests of “Class A” suspects on September 11, the government immediately revived this idea. On September 12—shocked by the impending arrests and, related to this, Tōjō’s attempt to avoid prosecution by committing suicide—the Higashikuni cabinet voted to investigate possible war crimes and conduct its own trials, regardless of what the Allies might do. Foreign Minister Shigemitsu (afterward arrested and tried for war crimes himself) conveyed the government’s intent to GHQ and was informed on the following day that this would not be possible.
The cabinet proposal brought to the surface a dilemma that troubled many officials including the emperor, who observed, according to Kido’s diary, that “those called war criminals by the enemy’s standards, especially those in responsible positions, were all performing loyal duties, and to punish them in the name of the emperor would be unbearable.” At the emperor’s request, the cabinet reconsidered its decision—and reaffirmed it, finally gaining Hirohito’s reluctant approval before submitting the proposal to GHQ. Kido himself found utterly implausible the notion of waging war in the emperor’s name and then following with trials in the emperor’s name. He also worried that this might bring out the Communists and result in people’s trials, “where blood washes blood among ourselves.”
Even after GHQ turned down its proposal, the cabinet did not let go of the idea. Prime Minister Higashikuni told foreign correspondents on September 18 that the government intended to investigate and punish those who had committed atrocities against POWs and other war crimes, a statement that received major coverage in the Japanese press. “Judgment of War Criminals: Begin by Our Own Hand” exclaimed one headline. Between September 1945 and March 1946, the government actually brought eight low-ranking individuals to trial for conventional war crimes in four separate trials, before SCAP intervened with a formal edict abolishing such proceedings. The presumption apparently was that once tried and sentenced, such individuals could not be subjected to double jeopardy and retried by the Allies. This hope was ill founded. The eight individuals were all retried in lower-level Allied tribunals and given more severe sentences. The relative leniency of sentences imposed in these few Japanese trials may have been a fair sample of what might have been expected if the government had been empowered to pursue war crimes at higher levels.82
A revealing example of official thinking on such matters can be found in the draft of an “Urgent Imperial Decree” composed sometime during these early months. This secret order never saw the light of day, but it is as vivid an example as we are likely to find of the lengths to which the ruling groups were willing to go, on their own, on the issue of responsibility—so long as such an inquiry could be coupled with reaffirmation of the emperor’s virtue and innocence. Its full, baroque title was “Urgent Imperial Decree to Stabilize the People’s Mind and Establish the Independent Popular Morality Necessary to Maintain National Order,” and its royalist logic was elemental: the disastrous war constituted a betrayal of the emperor’s trust, a tragic perversion of his abiding commitment to peace. Just as the victor nations assumed that historically and culturally they embodied the “civilized” ideals of respect for peace and humanity, so these authors depicted the same ideals as lying at the heart of their imperial tradition. What the Western-trained jurists laboring at Nuremberg and later Tokyo defined as “crimes against peace” and “crimes against humanity” became, in this proposed formulation, “the crime of treason.”
The core of the draft decree’s indictment was laid out, in cumbersome fashion, in the first three of its twelve provisions:
1. The aim of this decree is to stabilize the people’s mind and establish the independent popular morality which is necessary to the maintenance of national order, and to this end to punish, remove, or dissolve those persons, institutions, or social organizations who or which, by going against the national polity, abusing their assistance to the emperor, and failing to follow his great spirit of peace, did with aggressive militarism lead or assist in leading government policies and popular trends, thus violating the instructions of the Meiji Emperor and inviting military-clique politics, with political parties knowingly aiding and abetting this, thereby instigating the Manchurian Incident, China Incident, and Great East Asia War, which destroyed the lives and assets of our people and various other peoples and endangered the national polity.
2. The following persons shall be sentenced to death or lifetime restraint for the crime of treason:
a. Persons who without the emperor’s order moved troops, needlessly initiated military activities, and commanded aggressive activities, making the Manchurian Incident, China Incident, and Great East Asia War unavoidable;
b. Persons who violated the Imperial Rescript to Soldiers and Sailors of Meiji 15 [1882] and invited the situation of military-clique politics, going against the emperor’s great spirit of peace by discarding the true essence of the national polity and engaging in despotic behavior or the like, thereby making the Great East Asia War inevitable.
3. The following persons shall receive sentences ranging from under 10 years restraint to life for collaboration in the crime of treason:
a. Persons directly involved in plans under provision 2a above;
b. Persons who agreed to the military-clique politics of provision 2b above, conspiring to strengthen or knowingly supporting this;
c. Persons who knowingly supported and cooperated with prowar plots and propaganda by military politicians and others, or created prowar public opinion contrary to the emperor’s great spirit of peace, thus making the initiation of war inevitable.
The draft went on to indicate that in certain cases such punishments might be commuted to what amounted to a purge from public office and loss of the rights ordinarily accruing to subjects. Investigations, indictments, and trials would be handled under the Attorney General’s office, which would take up cases against individuals on receipt of petitions containing one hundred signatures.83
At first glance, it would seem difficult to imagine a greater contrast than between this draft, still redolent with the rhetoric of wartime emperor worship, and the ideals set forth in the Tokyo charter. For all its Japanese coloration, however, the “Urgent Imperial Decree” does suggest that trials conducted by the Japanese would not have been altogether different from what actually took place under the Tokyo tribunal. Like the actual “Class A” war-crimes trials, such trials would have been showcase. A small number of once-influential individuals would have been indicted, mostly military officers associated with Tōjō, but also a few civilian officials such as former foreign minister Matsuoka Yōsuke (who was indicted by the victors but died while the Tokyo trials were in progress). A documentary record would have been established to make the case that Japanese militarism and aggression, beginning with the Manchurian Incident of 1931, reflected “military-clique politics” rather than imperial policy. Vague counterpart concepts to what the Allies called “crimes against peace” and “crimes against humanity” would have been employed.
Essentially, this draft decree amounted to a rough formulation of “loser’s justice” that would have brought to the dock as scapegoats many of the same individuals who were tried and convicted at the Tokyo tribunal. This is not mere conjecture, for in preparing its indictment, the prosecution in the Tokyo trial relied greatly on finger pointers close to the throne who endorsed the sentiments and tactics of the draft decree, even if they had not necessarily been directly involved in preparing it. The main purpose of the trials envisioned by the Japanese was identical to a fundamental subpurpose of the Tokyo trial: to establish the emperor as peace loving, innocent, and beyond politics. Loser’s justice, like victor’s justice, ultimately would have entailed arguing that Japan had been led into “aggressive militarism” by a small cabal of irresponsible militaristic leaders. Indeed, it would have involved a home-grown conspiracy theory.
However intriguing to imagine, leaving high-level war crimes trials to the Japanese themselves was inconceivable to the victors. Subsequently, the Americans rejected a more modest proposal that Japanese be included on the prosecution staff of the Tokyo tribunal.84 It is easy to imagine the outcry this would have provoked outside Japan about letting the fox into the chicken coop; nonetheless, this was probably a genuinely promising lost opportunity. Capable and responsible lawyers were available who might have effectively staffed a contingent of assistant prosecutors, and a substantial portion of the populace—bitter about the war and hopeful for a clean start—would have supported such a role. A prosecution contingent of this sort might even have provided the nucleus for ongoing war-crimes investigations such as took place in Germany.
Lacking any formal role in prosecuting war criminals, the elites undertook informally to influence whom the victors decided to arrest and indict. Contrary (once again) to the wartime propaganda of “one hundred million hearts beating as one,” the Japanese war machine had been wracked by internal conflicts. Factionalism was rife not merely between the military and civilian bureaucracies, but also within those bureaucracies—and not merely between the imperial army and navy, for example, but also within each service. By early 1945, even before the steady air raids against cities began, fingering the culprits responsible for Japan’s impending defeat already had begun in earnest at the highest levels. The conquerors may have imagined themselves setting foot in a land of tight-lipped samurai bonded by blood, but what they found was closer to Byzantium, buzzing with whispers, riven with feuds.
This milieu of factional intrigue bubbled with conspiracy theories, none more immediately serviceable than the notion of “military-clique politics,” which had received unusually forceful explication in February 1945 in a confidential presentation to the emperor by former prime minister Konoe Fumimaro. Subsequently known as the “Konoe Memorial,” this apocalyptic presentation essentially placed all blame on Konoe’s successor as prime minister, General Tōjō, and his entourage. As Konoe and his entourage saw it, the country had been brought to the verge of revolution by a diabolical clique of militarists and clandestine Communists. Both the militarists and leftists, his argument went, were contemptuous of capitalism and intent on bringing about a social and political revolution within Japan and throughout Asia.85
Konoe’s conspiracy thesis amounted to a participant’s rendering of the intense factional struggles that had consumed political and military circles throughout the 1930s and early 1940s. To a considerable degree, his argument followed the line taken by the Kōdō-ha, or Imperial Way Faction, which lost power within the military after its complicity in an unsuccessful coup d’état in 1936. Among other things, Kōdō-ha supporters had been chary of taking on the United States and European powers by attacking their colonial enclaves in Southeast Asia and were more inclined to prime the country for an “advance north” against the Soviet Union. The Kōdō-ha’s nemesis, and Konoe’s too, was the Tōsei-ha or Control Faction headed by General Tōjō. Nothing fails like failure, and in the rubble of defeat the once-powerful Tōjō was the most vulnerable man in Japan, almost everyone’s favorite target.
In the months after surrender, Konoe devoted much time and energy to conveying his perception of “military-clique politics” to the victors. At one point, he essentially gave a repeat performance of his audience with the emperor for General MacArthur. Following his suicide in December, the prince’s colleagues and confederates carried on the campaign to focus Allied inquiries primarily on individuals who had been more or less aligned with the Control Faction. Konoe’s extremely well-connected former aide and private secretary Ushiba Tomohiko immediately turned some seventy-five notebooks and other papers belonging to the prince over to the International Prosecution Section (IPS) and urged the victors to go after Tōjō and his supporters as well as Matsuoka Yōsuke, who as foreign minister under Konoe had been a prime mover behind Japan’s alliance with Germany and Italy. Ushiba also recommended that the IPS make use of Iwabuchi Tatsuo as an informant. A prominent journalist who had been involved in the secret drafting of the Konoe Memorial, Iwabuchi worked indefatigably to promote the Kōdō-ha line, both in journalistic essays and briefings with the victors. He also identified the emperor’s intimate adviser Kido Kōichi as bearing heavy responsibility for going along with the militarists and tendering bad advice to the sovereign. Yoshida Shigeru, another collaborator in the preparation of the memorial, also happily included Kido among the prime culprits he volunteered to the victors.86
Other Japanese associated with the Konoe Memorial also collaborated closely with both the IPS and GHQ’s counterintelligence staff. Ueda Shunkichi, one of the most hysterical “communist conspiracy” theorists in the group, eventually submitted a list of seventy-eight names of those he deemed primarily responsible for Japan’s folly and disaster.87 Retired general Mazaki Jinzaburō, a former inspector general of military education and a leading ideologue in the Imperial Way Faction, likewise cooperated enthusiastically. After being arrested as a suspected “Class A” war criminal, Mazaki essentially charmed his interrogators. He was particularly vehement in castigating Kido. Should they meet by chance, he told the Americans, he would spit in Kido’s face. Although the Kōdō-ha firebrand had played a major role in stepping up ultranationalistic indoctrination in the army in the mid-1930s, the prosecutors who interviewed him, impressed by his “pro-American” (and virulently anticommunist) views, eliminated him from the original list of suspects designated to be tried immediately.88
Numerous others joined the chorus serenading IPS and GHQ investigators. Their refrain was predictable: exclude the emperor, focus on Tōjō and those close to him, and include a few obvious civilian officials such as the volatile, abrasive Matsuoka and the wily Kido. Some of these informants were insiders at the palace itself. In February 1946, Terasaki Hi-denari, the emperor’s indefatigable liaison with both IPS and GHQ, provided the prosecution staff with a list of forty-five names of individuals who, he claimed, bore prime responsibility for the disastrous war, buttressed with specific information concerning many of them. (Forty-two were still living.) He did not hesitate to intimate that some of his information came directly from the emperor. On one occasion, he informed his American contacts in the IPS that Hirohito had personally expressed disapproval of Matsuoka’s proposal to attack the Soviet Union only a few months after the Japan-U.S.S.R. Neutrality Pact had been signed. The IPS files also contain a notation, apparently based on Terasaki’s confidential conversations, to the effect that the emperor had inquired about why a certain former general, Arisue Seizō, had not been arrested.89
The two Japanese who had the greatest influence on the prosecution were an ex-general and the emperor’s former privy seal. The IPS tuned in to former general Tanaka Ryūkichi in January 1946 and found him to be a knowledgeable, exceedingly voluble source of inside information about high-level army activity, including transgressions in China and the military’s deep involvement in opium trafficking. Years after the trial, in which he appeared as a key witness for the prosecution, Tanaka explained that his rationale for incriminating so many former colleagues was “to make the emperor innocent by not having him appear in the trial, and thus maintain the national polity.”90
More famous than Tanaka, and even more influential in naming names, was Kido, the grandson of one of the Meiji founding fathers. As privy seal from 1940 to 1945, he had not only been the coordinator of the imperial schedule and the emperor’s confidant, but also a conduit of information, a processor of gossip, and a cunning intriguer. His enemies were numerous. Kido’s impending arrest as a “Class A” suspect was announced on December 6, and he initially intended to shield his sovereign by taking on himself full responsibility for all imperial decisions sanctioning war. On December 10, however, following a moving farewell audience with the emperor, he was persuaded otherwise. His change in tactics was prompted by a conversation with the well-bred, young nominal Marxist Tsuru Shigeto (later a prominent economist and educator), to whom Kido was related by marriage. Tsuru, who had pursued higher education in the United States and earned a Ph.D. in economics at Harvard in 1940, explained that, given the American way of thinking, Kido’s proposed tactic was grievously flawed. If he pleaded guilty, the Americans would take this as an indication that the emperor was guilty as well. To enhance the emperor’s aura of innocence, it behooved him to plead innocent himself. Hearing this, Kido recorded in his diary, “I felt as if my mind has been settled.”91
Tsuru apparently offered this advice with encouragement from his close acquaintance Paul Baran, a progressive American economist who was then in Japan with the U.S. Strategic Bombing Survey. Thus it came about that, on December 21 in his first interrogation session with the IPS (with Tsuru interpreting), Kido made known the existence of the detailed diary he had kept since 1930 and agreed to turn it over to the prosecution. He did so between December 24 and January 23 in three installments, the last being the diary entries for 1941—the period in which American investigators, fixated on Pearl Harbor, were most interested. The Kido diary quickly became known as the prosecution’s “bible.”92
It is possible that Kido vetted the diary slightly so as not to “inconvenience” his sovereign.93 Certainly, the former privy seal was confident that his often cryptic daily entries, supplemented by what he told the prosecution by way of explanation, could be used to make the case that the emperor consistently hoped for peace and that the responsibility for resorting to war lay entirely with the government and the military. His calculated gamble paid off handsomely. Although the prosecution combed the diary meticulously in preparing its cases against the various defendants, those portions submitted as evidence were carefully screened to avoid any significant reference to Hirohito’s words or actions. No part of the prosecution’s unusually lengthy interrogation of Kido—thirty sessions producing approximately eight hundred pages of typed transcript—was ever introduced as direct evidence; for even Kido, notwithstanding his vigilance, occasionally made statements that could be interpreted as indicating that the emperor was a leader who bore some responsibility for Japan’s course of action.94
In March 1946, as the final list of “Class A” suspects who would actually be brought to trial was being determined, the IPS decided to include, wherever possible, excerpts from both Tanaka Ryūichi’s interrogation and Kido’s diary in the file of every prospective defendant. Of the twenty-seven defendants who joined Kido in the tribunal’s original indictment, he himself had singled out fifteen as bearing prime responsibility for Japan’s war.95
