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12 Politics as Conspiracy: the Tokyo Trials

Tokyo is the forgotten Nuremberg. Whereas today everyone remembers Nuremberg, the sister trial in Tokyo has largely vanished from historical memory and is seldom cited as a judicial precedent. This is in spite of the fact that the president of the International Military Tribunal (IMT) for the Far East proclaimed during the trial itself that there had been no more important trial in history.¹ (Many other trials have been called ‘the trial of the century’ before being similarly forgotten.) The judgement of the tribunal was not published in full until 1977,² and the complete proceedings of the trial not until 1998.³ This amnesia no doubt reflects the fact that, whereas American fury in 1945 was perhaps even greater at Japanese war crimes than at German ones, a few decades later the principal historical memory of World War II was that of the Holocaust perpetrated in Europe.

By the time the IMT convened in Tokyo on 3 May 1946, the Nuremberg trials had been under way for six months; they were to finish in September 1946. While war crimes trials of European leaders had been going on across the continent, the Tokyo trials did not finish until 1948. They therefore brought to a conclusion the series of postwar trials of heads of state and government.

Inspired by the practice in other states, the choice of the defendants at Tokyo was based on the desire to prosecute a representative cross-section of the wartime regime of Japan as a whole. Four prime ministers were in the dock: Koki Hirota (prime minister from 9 March 1936 to 2 March 1937, minister of foreign affairs from 1933 to 1936 and again from 1937 to 1938, a civilian, hanged in December 1948); Hiranuma Kiichiro (prime minister from 5 January 1939 to 30 August 1939, a civilian, sentenced to life but paroled in 1952); Hideki Tojo (a general in the Imperial Army, prime minister for most of the war, from 1941 to 1944, including at the time of ← 163 | 164 → the attack on Pearl Harbor, hanged in 1948); and Kuniaki Koiso (prime minister from 22 July 1944 to 2 April 1945, a general in the Imperial Army, sentenced to life imprisonment and died in 1950).

As at Nuremberg, the process by which indictees were chosen was political. Mamoru Shigemitsu, a former foreign minister and ambassador to London, was included in the list of indictees at the very last moment, and on Soviet insistence. His arrest and trial provoked numerous protests, as many in the West believed him to be a good and innocent man.4 (Shigemitsu was sentenced to seven years in prison, although he was quickly paroled and then re-entered political life to become foreign minister once again in 1954.) The other indictees were all senior ministers and top military commanders. Meanwhile, hundreds of actual perpetrators were also prosecuted by the Americans, in trials conducted away from the glare of publicity, for having committed crimes under the ordinary laws of war.

However, the head of state himself, Emperor Hirohito, was not in the dock. General MacArthur had decided that if the emperor were indicted, then direct military rule would have to be introduced in Japan, and that this would require ‘one million reinforcements’.⁵ He was an admirer of the Japanese people and he understood the political repercussions of putting their emperor on trial. But it would have been very easy to convict the emperor on the same basis of command responsibility as that used to convict the prime ministers and other senior figures, especially since he was no mere figurehead. The judges connived in his exoneration, including by actively intervening during the trial to prevent any witnesses or defendants from implicating him or calling into question the policy decision taken by the American occupation authorities.⁶ Like Admiral Horthy, the head of state in Hungary, Emperor Hirohito was spared from prosecution by a purely political decision.

There were twenty-eight defendants at Tokyo (two of whom died during the trial, while one was declared unfit to stand trail), compared with twenty-four at Nuremberg (of whom twenty-one actually stood trial). The Tokyo Charter followed the Nuremberg Charter very closely indeed, often verbatim; it was drafted essentially by Joseph B. Keenan, who went on to be the trial’s chief prosecutor. Like the Nuremberg Charter, the Tokyo one declared, ‘The Tribunal shall not be bound by technical rules of evidence,’ and it admitted anything it deemed to be ‘of probative value’, without saying what, if any, conditions were needed to fulfil this criterion. The charges were divided into the same three categories as at Nuremberg: crimes against peace, war crimes, and crimes against humanity. As at Nuremberg, great prominence was given in the indictment to the concept of criminal conspiracy to initiate aggressive war. All but two ← 164 | 165 → of the defendants were convicted of conspiracy to commit crimes against peace, compared with only eight out of twenty-two at Nuremberg. Of those two, one was convicted of war crimes and the other of aggressive war and war crimes. There were no acquittals at Tokyo. Seven men were condemned to death: two prime ministers (Tojo and Hirota) and five generals. This compares with twelve death sentences at Nuremberg (and three acquittals). Although Japan had only the Americans as occupiers, judges were summoned from the United States, the Soviet Union, Britain, China, the Netherlands, France, Australia, New Zealand, Canada, India, and the Philippines – precisely those countries which were said to be victims of Japanese aggression. In other words, the members of the bench were deliberately chosen for their presumed bias.

As is the practice at the International Criminal Tribunal for the former Yugoslavia, some of the judges at Tokyo were not in fact judges at all: the Chinese judge, for instance, was a politician. The Indian judge, Radhabinod Pal, was the only man on the bench with any experience in international law. The Russian judge, a military officer, spoke neither of the tribunal’s two official languages, English and Japanese. Judges were frequently absent, and numerous important rulings were carried out by majority vote. Justice Pal himself missed eighty out of the trial’s 417 days. The presiding judge, Sir William Webb, returned to his native Australia for a month in November–December 1947, missing twenty-two days of the trial. Other judges came and went according to their availability, and the trial continued with empty seats on the bench.7

Like Nuremberg, Tokyo was a city in ruins as a result of Allied bombs. The United States air force had napalmed Tokyo on 9–10 March, killing 80,000 people in the firestorms thus provoked. Indeed, it was partly for this reason that the atomic bombs were dropped on Hiroshima and Nagasaki, killing well over 100,000 people outright, the vast majority civilians, and another 100,000 who died soon afterwards from radiation: there was nothing left in the capital to bomb.⁸ It was doubtless precisely because of the terrible violence which the Allies had inflicted on Japan that they concentrated their prosecution on aggression rather than war crimes, of which they had committed plenty themselves. The Americans held the upper hand and they wanted to force the Japanese to admit that they had started the conflict.

However, the accusation of aggression was more difficult to sustain at Tokyo than it had been at Nuremberg. There was little doubt that Japan had attacked its neighbours, and of course the United States, but one of the Allies, the Soviet Union, had also had attacked it, thanks to pressure from the Western Allies at Yalta and at Potsdam. The Soviet Union had agreed to declare war on Japan on 8 August 1945, two days after Hiroshima, ← 165 | 166 → and the official justification the Soviets gave for their declaration was that the war in the Pacific would thereby be brought more swiftly to an end. However, the Soviet Union had a non-aggression pact with Japan at the time, and the declaration was therefore a violation of that treaty; it had committed the very same ‘international crime’ for which the Treaty of Versailles had said that the Kaiser should be arraigned, and of course the same crime as that for which the Japanese leaders were in the dock.

Similar objections also applied to the charge of crimes against humanity. There can be little doubt that the American decision to drop atomic bombs on Hiroshima and Nagasaki were themselves examples of crimes against humanity. But that is not how the Allies saw things then or see them now. Even today, the memory of the bombing of Hiroshima and Nagasaki is cherished. In 2003 the Enola Gay, the aircraft which dropped the Hiroshima bomb, and which was affectionately named after the pilot’s mother, was restored and exhibited in the Smithsonian National Air and Space Museum at Dulles airport in Washington, DC. The new exhibition replaced an earlier one which had attracted controversy because it spoke about the victims of the attack.

The Americans also decided not to bring any prosecutions against those responsible for the notorious Unit 731, a covert biological warfare research unit run by the Japanese army, in which prisoners were used as human guinea pigs for experiments which seem like something out of the darkest sadistic fantasy. Prisoners were cut open while alive; they were tied to posts and bombarded with chemical and biological weapons; they were horribly tortured to death ostensibly for reasons of medical research. The total number of victims is estimated at between 3,000 and 10,000, but discussion of the camp’s horrible practices was suppressed at the trial because General MacArthur granted an amnesty to the camp commander, General Shiro Ishii, in return for his agreement to hand over his findings to the American authorities. Ishii was never prosecuted and died a free man in 1959.

Perhaps because of these difficulties, the issue of aggressive war was debated more intelligently at Tokyo than at Nuremberg, and this was greatly to the detriment of the Prosecution case. One of the defence counsels, Kenzo Takayanagi, relished telling the court that when the Japanese government had sent a note to the American government in 1929, announcing that it agreed to sign the Kellogg–Briand Pact – the very treaty on the basis of which the wartime leaders were now being prosecuted – Tokyo had said that it agreed with Washington’s understanding of aggressive war and self-defence, and that according to this understanding Japan would be able legitimately to defend her interests in China.9 ← 166 | 167 →

A further reason why the Japanese defence was more robust than that of the Germans at Nuremberg was that the Cold War was getting under way during the trial. This gave the defendants a perfect opportunity to claim that they had been acting against the Communist threat from the Soviet Union and China.10 Since the Americans were themselves by then advocating a policy of containment vis-à-vis Communism, and since this included support for war in some parts of the world – as of course it was to do throughout the postwar period – the Japanese defendants argued that they had been doing the same thing themselves, only a little earlier than the Americans. The bench however, chaired by the aggressive and partisan Webb – who had agreed to be a judge even though he had previously carried out three investigations into Japanese war atrocities for the Australian government, and was therefore parti pris – refused to admit these remarks or the documents supporting them.¹¹

A further issue on which there was strong debate was command responsibility. If the Japanese war crimes trials are remembered at all in modern international humanitarian law, it is because they provided the widest possible interpretation of command responsibility. The Americans (not the IMT at Tokyo) hanged General Tomoyuki Yamashita in 1945 for atrocities committed in the Philippines: the finding was not that he had ordered atrocities, nor even that he had been aware of them, but instead that he had condoned a climate of lawlessness and failed to prevent violations. The case went to the United States Supreme Court and Yamashita’s death sentence was upheld by seven votes to two with strong dissenting opinions. The reason why the conviction is controversial is that the language in which the laws of war are formulated is replete with qualifiers which emphasize deliberate intent: phrases such as ‘wilful killing’, ‘wilfully causing great suffering’, ‘wanton destruction of cities’, and so on. Yamashita may have been morally guilty of criminal negligence but the existing laws of war had not been formulated to criminalize this.

This concept of negative criminality – subsequently upheld by the IMT at Tokyo – had been fiercely contested by the American members of the Commission of Responsibilities at Versailles, who had argued in 1919 that it was intolerable to punish people for acts which they had not ordered and of which they may even have been unaware.¹² In modern international humanitarian law, and thanks largely to Tokyo, however, this view has gone unheeded. It is common now for defendants to be convicted on the basis that they ‘must have known’ or ‘should have known’ about crimes and that they failed to prevent them, but such claims come dangerously close to a presumption of guilt which any defendant would have difficulty disproving. The tendentiousness of this doctrine of negative ← 167 | 168 → liability (failure to prevent breaches of the laws of war) was only emphasized when two of the defendants at Tokyo (Iwane Matsui and Koki Hirota) were hanged for it, having been acquitted of ordering, authorizing, or permitting atrocities.

At Tokyo, the Prosecution alleged that the grand conspiracy of imperialism and aggression which united the defendants dated from as far back as 1927. A document known as the ‘Tanaka memorial’ named after the then prime minister, Giichi Tanaka, which provided the basis for Frank Capra’s propaganda film Why We Fight, and which the Prosecution took seriously, was supposed to show how the defendants shared a common plan from 1927 to 1945; it has subsequently turned out to be a fake on a par with the so-called ‘Operation Horseshoe’ document advanced by NATO and the Prosecution at the ICTY in support of its claims about an alleged conspiracy hatched by Slobodan Milošević and others to drive out the ethnic Albanian population of Kosovo. But the fact that the Prosecution argued (and the judges concurred in their verdict) that the ‘common plan’ had been hatched in 1927 meant that nearly two decades of Japanese domestic and foreign policy were equated, from the legal point of view, with a private criminal conspiracy to rob a bank or commit a murder. Yet such a version of political events can be advanced only by leaving the acts of other states out of the picture, and by taking the defendants’ political decisions out of their true world political context.

One of the reasons why the Prosecution relied on this wide-ranging conspiracy theory was that the indictment was drawn up before it was decided who was going to be indicted.13 A concept as elastic as conspiracy can be expanded or contracted to fit almost anyone. One of the Defence counsels quoted at length the authoritative article of Francis B. Sayre on ‘Criminal Conspiracy’:

Conspiracy is as anomalous and provincial as it is unhappy in its results. It is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continental lawyers have ever heard of it … Under such a principle everyone who acts in cooperation with another may some day find his liberty dependent upon the innate prejudices of an unknown judge. It is the very antithesis of justice according to law.¹⁴

The use of a body of law gleaned from financial fraud and other forms of organized crime for the purpose of adjudicating political decisions was additionally strange in the case of the Japanese: whereas one could make a case for saying that the Nazi leaders who seized power in Germany in 1933 were in some respects akin to a criminal gang, this thesis hardly applied to the members of the Japanese elite prosecuted at Tokyo. They had risen ← 168 | 169 → to positions of power legally and by virtue of their abilities, and without perpetrating any assaults on the constitutional order comparable to the 1933 ‘enabling law’ (Ermächtigungsgesetz) in Germany.

At Tokyo, the Defence argued that Japan felt encircled, that she was subject to various forms of blockade or economic discrimination, and that she felt entitled to protect her national and regional interests just as the Americans had done when they waged war against the British naval blockade in 1812. Japan was being squeezed out of trade by barriers put up by the burgeoning regional European imperial economic arrangements in East Asia. The tribunal’s refusal to consider the political context not only gave a totally biased account of Japan’s pre-war policies, but also led to some amusing inconsistencies in the judgement. For instance, the tribunal found both that the attack on Pearl Harbor in December 1941 had been an act of aggression, and also that China had received help from the United States while she had de facto been at war with Japan since 1937. Yet these two findings cannot both be true: if the United States was not neutral but an ally of a belligerent power, then the attack on Pearl Harbor was not entirely unprovoked.15 Whether one considers it a justified response is another matter.

It was precisely such conundrums which led to Tokyo’s most interesting outcome, the lack of unanimity on the bench. The trial lasted two and a half years and the transcript ran to 45,000 pages. There were 818 public sessions, 416 witnesses, and unsubstantiated affidavits from 779 others. The judgement was 1781 pages long and it took no fewer than nine days (4–12 November 1948) for the president of the court to read it out. It was notable for the fact that five judges on the bench offered either separate or dissenting opinions, although these opinions were not read out in court, and the very fact of their existence is buried deep inside the judgement itself.

The dissenters were Henri Bernard of France, Bert Röling of the Netherlands, and Radhabinod Pal of India. (The president of the tribunal, William Webb, had concurred with the guilty verdict but opined that death was not an appropriate sentence; Judge Jaranilla of the Philippines also filed a separate opinion.) As we shall see, Pal’s was the most dramatic since he argued that all defendants were innocent on all counts. But Henri Bernard’s dissent was perhaps even more forceful than Pal’s because it was not politically motivated and because its tone was so measured. Bernard wrote, ‘Essential principles, violation of which would result in most civilised nations in the nullity of the entire procedure, and the right of the Tribunal to dismiss the case against the Accused, were not respected … A verdict reached by a tribunal after a defective procedure cannot be a valid ← 169 | 170 → one.’16 Röling agreed (although not in his Opinion); he later explained the failure to publish the transcripts of the proceedings at the time by saying, ‘I suppose that they [the United States] were perhaps a bit ashamed of what happened there …’¹⁷ Röling also agreed with Pal that Tokyo was victors’ justice.¹⁸

Bernard published his dissenting opinion because he was angry with his fellow judges for announcing their verdict in the name of the whole tribunal instead of in the name of their majority alone. Bernard also said that he was not convinced of the defendants’ guilt of crimes against peace (although he did think the Japanese generally and some of the defendants were guilty of atrocities). He argued that both the law against crimes against peace and the law of conspiracy which underpinned it were too poorly defined to be usable. He bitterly attacked the way in which the findings of fact had been drawn up by the majority seven and then presented to the other judges for approval. This meant that all eleven judges never met to discuss the findings of fact, even though these made up 1050 pages of the judgement.¹⁹

Bernard even alleged that the findings of fact had been effectively doctored by the majority seven to put things into the mouths of the accused which, he said, they had not said:

In several parts of the judgement quoting discourses, policies adopted etc., by the Defendants, the word ‘war’ is accompanied by the epithet ‘aggressive’ in such a way that the latter seems to emanate directly from the mouth or the pen of the Accused. Never, however, did any of them … speak of this war as an aggressive war. It is only by substituting the conclusions drawn from the examination of these discourses, policies etc., that the majority was able to write the findings of fact permitting to arrive at the confession on the part of the Defendants of their guilt and implicitly of the cognisance of the law.²⁰

Bernard argued that the Prosecution had also failed to demonstrate proof of conspiracy. ‘No direct proof was furnished concerning the formation among individuals known, at a known date, at a specific point, of a plot the object of which was to assure to Japan the domination unaccepted by its inhabitants of some part of the world.’²¹ This failure, he said, was especially egregious in view of the fact that Emperor Hirohito was not on trial. If Hirohito’s case was measured by a different standard, Bernard said, then one was right to wonder whether international justice would merit to be exercised at all.²²

Radhabinod Pal’s long and forceful dissent was not included in the trial record either and he had to publish it himself privately in Calcutta in 1953.²³ It has since become well known among opponents of such international ← 170 | 171 → tribunals. He said he thought all the defendants should be acquitted because the IMT was not competent to try them. Pal was adamant that no treaty, statute or part of customary international law made aggressive war a crime. ‘The so-called trial held according to the definition of crime now given by the victors obliterates the centuries of civilisation which stretch between us and the summary slaying of the defeated in a war. A trial with law thus prescribed will only be a sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice.’24 He insisted, sarcastically but correctly, that ‘only a lost war is a crime.’²⁵

Pal’s view on the wrongness of criminalizing aggression went to the very heart of the matter. His rejection of this charge was not based merely on the ‘sterile legalisms’²⁶ which Justice Jackson had so proudly said would be tossed aside to secure the conviction of the Nazis. Pal argued not only that it was wrong to bring a prosecution for aggressive war without having managed to define the term (as neither Tokyo nor Nuremberg had managed to do) but also that the very desire to introduce a new world order of peace was itself fundamentally flawed. ‘I am not sure if it is possible to create “peace” once for all, and if there can be a status quo which is to be eternal,’ Pal wrote. ‘At any rate in the present state of international relations such a static idea of peace is absolutely untenable. Certainly dominated nations of the present day status quo cannot be made to submit to eternal domination only in the name of peace … War and other methods of self-help by force can be effectively excluded only when this problem is solved.’²⁷

This view had many supporters in Asia, where many countries were hoping to throw off the yoke of colonialism. They resented the introduction of a new principle in international criminal law which seemed designed to preserve the current colonial arrangements indefinitely by outlawing any attack against them. There can be no doubt that the law applied at Tokyo would do this: Japan was accused of attacking Britain and the Netherlands, even though she had, of course, attacked only the Asian colonial possessions of these states, not the states themselves. Indeed, it has also been plausibly argued that the whole purpose of the Tokyo trial was to re-legitimize the postwar American occupation of Japan.²⁸

The law against aggression also seemed in danger of legitimizing reprisals against anti-colonial insurgencies: the Dutch, who of course had a judge on the Tokyo bench, were themselves fighting a bitter anti-insurgency operation to retain control of Indonesia as the Tokyo trial was going on, while the French, who also had one, were similarly fighting to retain Indochina. Indeed, when American investigators arrived in Saigon ← 171 | 172 → to arrest members of the Japanese colonial police for prosecution for war crimes, they found that the French, British, and Indians who were occupying the country had rearmed them in order to help them fight the Viet Minh.29 In this context, Allied accusations against the Japanese at Tokyo for having established systems of colonial rule in the countries they invaded must have elicited wry smiles from the defendants and, one hopes, a guilty conscience among the people making them.

Pal made great rhetorical use of the terrible killing caused by the American atomic bombs: he illustrated his Dissentient Opinion with graphic photographs of civilians killed and burned at Hiroshima and Nagasaki. More pointedly still, he reminded his readers that, after World War I, a letter had been produced from Kaiser Wilhelm II to the Austrian emperor, Franz Joseph, which was quoted as evidence of the German emperor’s criminal intent. Wilhelm had written,

My soul is torn, but everything must be put to fire and sword; men, women and children, and old men must be slaughtered and not a tree or house left standing. With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in months, whereas if I admit considerations of humanity, it will be prolonged for years.³⁰

This letter was used by those who wanted to hang the Kaiser, yet the reasoning it expressed was the same as that used at the time – and still used today – to defend the American decision to drop the A-bomb on Japanese cities.

The fact that the bench was divided vitiates the validity of the death sentences: it is common in many jurisdictions for unanimity to be required for a death sentence. In the case of Hirota, the vote on the death sentence was six votes to five; it is inconceivable in most jurisdictions to execute a man on the basis of a one-vote majority. Richard Minear compares the laxity of the Tokyo voting rules with that of American military courts, which require a three-fourths majority for the death sentence; he calculates that if these rules had been in force at Tokyo, then there would have been no death sentences at all.³¹

Like the trial of Monsignor Tiso in Czechoslovakia, the judgement of the International Military Tribunal for the Far East was subject to appeal to the highest political authority in the land, which was General MacArthur. Within a week of the sentences having been handed down, the defence counsels appealed to him. Given that eleven judges had written six separate opinions, there seemed every reason for an appeal for clemency to be heeded. General MacArthur summoned a meeting of the Allied Council ← 172 | 173 → for Japan, composed of the ambassadors of the Allied Powers in Japan: the United States, Australia, France, India, the Netherlands, China, New Zealand, the Soviet Union, and the United Kingdom. The various diplomatic representatives basically copied what their co-nationals on the bench had said: India called for clemency, just as Justice Pal had said all defendants were innocent; the Netherlands recommended that Hirota’s death sentence be commuted to life imprisonment, just as Justice Röling had said that Hirota was innocent; the seven nations whose judges composed the majority suggested no change to the majority verdict.

Having heard their opinions, the majority of which upheld the majority view of the bench, MacArthur decided that he could not overrule the tribunal’s decisions and the men were sent to their deaths. He issued an emotional statement, concluding his rather agonized reasoning by saying,

I pray that an Omnipotent Providence will use this tragic expiation as a symbol to summon all persons of good will to the realization of the utter futility of war – the most malignant scourge and greatest sin of mankind – and eventually to its renunciation by all nations. To this end, on the day of execution, I request the members of all the congregations throughout Japan of whatever creed or faith in the privacy of their homes or at their altars of public worship to seek divine help and guidance that the world will keep the peace, lest the human race perish.

The following year, the chief prosecutor, Joseph Keenan, published an account of the trial in which he made the extraordinary claim that what was at issue was not the guilt or innocence of the defendants, but instead the wider issue of forging a new world order based on the criminalization of war. Having disgraced himself during the trial by his heavy drinking – he was often inebriated in court, and was habitually unable to eat dinner since he had already had too much to drink by the early evening – Keenan disgraced himself further by saying that it did not matter if some of the defendants had been unjustly executed because their fate was a means to the ‘grander and wider aim of the trial, [i.e.] to advance the cause of peace and right notions of international law’.32 The punishment of the defendants, he said, was ‘relatively unimportant’ by comparison. Keenan was angry that the Defence lawyers did not see things this way and instead concentrated on trying to get their clients acquitted. ‘In order to facilitate the interests of their clients, it seems that the Defense were willing to sacrifice the common international good,’ he wrote. ‘Had there been an actual miscarriage of justice with regard to some of the defendants, there would have been no wrong. The situation of the defendants was comparable to that of American soldiers about to take a beachhead; that is, the lives of morally and legally innocent men may be sacrificed in the achievement of the common purpose.’³³