The first, and most controversial, count in the IMTFE indictment accused all twenty-eight defendants with entering into a conspiracy among themselves and with the leaders of Germany and Italy. According to the prosecution, ‘the main object of this conspiracy was to secure the domination and exploitation by the aggressive States of the rest of the world, and to this end to commit, or encourage the commission of crimes against peace, war crimes, and crimes against humanity as defined in the Charter of this Tribunal, thus threatening and injuring the basic principles of liberty and respect for the human personality’.1

This was an adaptation of the ordinary concept of criminal conspiracy to international law. A group of people who plan to commit an offence together can traditionally be charged with a conspiracy to commit the offence, although the law itself in the countries where this is recognised has been modified over the years. But significantly, conspiracy is only a crime in the common law system, so Bernard, Röling, Zaryanov, and the Japanese lawyers were all unfamiliar with the idea.

Forming an unlawful conspiracy had also been the first count at Nuremberg, which was how it made its way into the Tokyo indictment. However, the prosecution at Tokyo came to rely on the charge far more than did the prosecution at Nuremberg. Which was ironic, as the defendants at Nuremberg had formed a far more close-knit group than the defendants at Tokyo. The defendants at Nuremberg were all members of the Nazi government, senior members of Nazi organisations such as the SS, or senior members of the German military who had worked together throughout the war. In contrast, the Tokyo defendants were an eclectic mix, some of whom didn’t know each other, had only held power at different times, or had even been bitter enemies with different objectives. As Comyns Carr wrote, ‘the whole Japanese situation is infinitely more complicated than the German for the purposes of a prosecution, as all the politicians, soldiers and sailors were all squabbling and double-crossing one another all the time, and it is by no means easy to pick the right defendants’.2

It is counterintuitive, but possible, for people to be convicted of criminal conspiracy under common law even if they have never met. For example, if a bank robber comes to an agreement with someone to act as getaway driver, and another to launder the proceeds of the crime, then the driver and money-launderer can be held to be in a common conspiracy to rob the bank even if one didn’t know the other existed. But there would still need to be the common goal – robbing the bank. At Tokyo, the prosecution was making the extremely broad claim that all the defendants were in on a common plot for world domination. Not for the last time, it had set itself a very difficult task through poor drafting of the indictment.

The defence was fiercely critical of the whole thing. The American lawyer John Brannon called it ‘a saving device for their [the prosecution’s] failure to elicit positive evidence of guilt of the individual accused’.3 This was broadly correct – the prosecution did put the charge in the indictment so they could tie all the defendants to the attack on China in 1937 and on the Western powers in 1941, even those who held no political power at the time or who, like the author Ōkawa, never held political power at all. Furthermore, Brannon pointed out, the prosecution had not decided if the conspiracy was a crime in itself (as the indictment seemed to say) or a means of finding individual defendants guilty of other specific crimes. ‘The prosecution seeks to use the doctrine of conspiracy as a double-barrelled weapon to accomplish a dual purpose,’ he said. ‘Firstly, conspiracy is used as a separate crime, and secondly, a method of proof of a crime alleged to have been committed.’4

To Keenan, these were mere technicalities compared with the ultimate goal of discrediting Japanese militarism. He later wrote that an ‘actual miscarriage of justice’ didn’t matter in the big picture. ‘The situation of the defendants is comparable to that of American soldiers about to take a beach-head: That is, the lives of morally and legally innocent men may be sacrificed in the achievement of the ultimate purpose, but the common good requires the taking of the beach-head.’5 It was a factually correct summary of the Allies’ position on the purpose of the IMTFE, but still an extraordinary argument for a prosecutor to make in what was meant to be a court of law.

The charge of conspiracy served another purpose: creating a record of how the militarists came to take power in Japan.

Early in the 1957 film The Bridge on the River Kwai there is a tragi-comic scene illustrating the clash between Western and contemporary Japanese attitudes to international law. Colonel Saito, the uncompromising commander of a prison camp on the Burma Railway, orders a battalion of British prisoners of war to work on the eponymous bridge regardless of their rank. Lieutenant Colonel Nicholson, the senior British officer with a near-religious faith in rules and regulations, points out that the Geneva Conventions exempted officers from manual labour. He produces a crumpled copy of the regulations from his pocket and hands them to Saito. Saito takes the folded paper, slaps him across the face with it, and repeats the order. The implication is clear – the Japanese had no regard for international law and Nicholson was a fool for expecting anything else.

But many British officers serving in the Far East and familiar with the Japanese Army actually did expect the Japanese to respect international law.6 In its last two wars with a European power, the Russo-Japanese War of 1904–05 and the First World War, Japan had adhered very closely to both the 1899 and 1907 Hague Conventions, which it had both signed and ratified. Some writers have attempted to explain the brutality and fanaticism of the Japanese armies through history and culture, with concepts of collective responsibility, shame and isolationism, and particularly the Bushidō code of the samurai warriors (which was, in reality, unknown to the samurai and invented by modern writers between 1890 and 1914).7 But these explanations cannot account for the fact that, from the Meiji Restoration in 1868 until the 1920s, Japan strove to incorporate itself into the international community, follow international law, and build a reputation as a civilised country. From 1902 to 1922, Japan was a close ally of Great Britain. A Japanese warship escorted the Anzacs to Egypt in 1914, and Japanese officers served with the British Army and Navy in the First World War. When Hirohito ascended the Chrysanthemum Throne in 1926, he took the reigning name Shōwa, meaning ‘enlightened peace’. ‘I have visited the battlefields of the Great War in France,’ he wrote in the enthronement address read to his subjects on his behalf. ‘In the presence of such devastation, I understand the blessing of peace and the necessity of concord among nations.’8

Then, from the 1920s until 1945, Japan’s leaders threw the country headlong into a moral abyss that led to the deaths of more than 20 million people in the Asia-Pacific, including 3 million Japanese, and which left its armed forces with a reputation for barbarism and created an enmity throughout Asia that has diplomatic ramifications to this day. It left Japan’s industries destroyed, its merchant ships sunk, its cities bombed into devastation and its people reduced to starvation. The prosecution at the IMTFE set out to explain how the twenty-seven men in the dock were collectively responsible for this downfall.

While the militarists who began to rise to prominence in Japan in the 1920s bore many similarities to German and Italian fascists, there was also much about them that was uniquely Japanese. They were fiercely anti-communist, fearing the Japanese monarchy could fall in revolution as had the Russian, German and Austro-Hungarian, but they were also critical of the West, liberalism, individualism, and the perceived excesses of capitalism, which in their view made men weak and accustomed to luxury. Like the fascists of Europe they promised a third way, an alternative to the failed systems of liberal capitalism and revolutionary socialism, but theirs was a path only Japan could take.

The militarists fed on anti-Japanese racism in the West and the social pressures of the Great Depression. Japan’s delegation to the 1919 Paris Peace Conference was led by Prince Saionji Kinmochi and Count Makino Nobuaki, both leading liberals. Initially everything appeared to be going well – Japan was recognised as a great power, granted a permanent seat in the newly formed League of Nations, and given Germany’s Pacific Islands north of the equator as a mandate. But when Makino moved a motion that the Covenant of the League of Nations have a clause affirming racial equality, it was defeated. The strongest opposition came from the United States, where racial segregation was a crucial policy of President Woodrow Wilson’s Democratic Party in the southern states, and from Australia, which viewed the White Australia policy as vital to its security and prosperity.

The defeat of the motion was a hard blow. Even as a modern great power, a participant in the international system and a Western ally, the Japanese had never been recognised by Europeans as equals. Furthermore, Japan had been rebuffed by a British dominion (Australia) in spite of its alliance with the United Kingdom. Once again, Japan felt isolated. Japanese journalist K.K. Kawakami wrote in 1919 with ominous foreboding:

It cannot be denied that in the past the nations of the West have applied to Asiatic peoples standards of justice and equity quite different from those applied to themselves . . . It is highly doubtful that this anomalous relationship between the Orient and Occident will be appreciably altered by the organization of the League of Nations which refuses to accept the obviously just principle that no race in the league shall be discriminated against in any of the countries bound by its covenant. As far as Asia is concerned, the League is not likely to be a harbinger of glad tidings.9

Prince Konoe had been with the Japanese delegation at Versailles and afterwards he wrote an article called ‘Reject the Anglo-American-Centered Peace’. However, he praised President Wilson and his Fourteen Points on the principles of peace. It was one of his many contradictions.

Then Japan’s political institutions were given a shock by the Great Depression. The country had few raw materials and was completely dependent on international trade, leaving it vulnerable to a global economic shock. The price of silk, one of Japan’s major exports, fell by more than half from 1929 to 1930. The price of rice, the other, fell to one-third of its pre-crash value.10 Farmers were reduced to eating bark and weeds, selling their daughters into prostitution, or committing suicide. Japan’s young industries, which had grown on First World War-era demand, were crippled by global tariffs. In two years, it seemed that decades of progress had ended. ‘A pall of gloom has been cast about the people,’ wrote K.K. Kawakami.11

The first serious clash between the militarists and the government came in 1930, in negotiations over the London Naval Treaty. Following the end of the First World War the great powers entered into a series of treaties intended to limit military spending and the growth of armed forces. One of these, the Washington Naval Treaty of 1922, permitted Japan the world’s third-largest navy but limited it to three-fifths of the size of the British and American fleets.

When the London Naval Conference proposed further limits on the size of navies, the Hamaguchi government in Japan intended to agree to them. Not only did this appear to be good diplomacy, but there was no money to spend on warships anyway, and the budgets of the army and navy had been cut. But this approach was criticised by the navy, and by extension, the militarists and their ultra-nationalist societies. The navy’s argument was based on Articles 11 and 12 of the Meiji Constitution, which stated that the armed forces answered directly to the Emperor. Traditionally this had been interpreted to mean the armed forces had some independence in their strategy and tactics in wartime. Now the navy argued that the government should not be able to control its size or spending. Prime Minister Hamaguchi Osachi, however, did not budge, and the treaty was signed.

At Tokyo station in November 1930, Hamaguchi was shot in the stomach by Sagoya Tomeo, a member of the ultra-nationalist Aikokusha, or Society of Patriots. The ‘Old Lion’ of the Taishō Democracy survived the assassination attempt but died of his wounds in August 1931. Sagoya was initially sentenced to death, but successive governments more sympathetic to militarism commuted his sentence and then released him. It was the first in what became a familiar cycle: a political leader opposed to the militarists would be shot by a junior member of an ultra-nationalist organisation, the assassin would be dealt with leniently by courts or military courts martial, and their example would inspire others.

To the militarists, the Japanese were the leading race in Asia, and so Japan was Asia’s natural leader. This idea was not based on the racist pseudoscience used to justify European domination of non-European peoples. Rather, it came from the premise that the Japanese were exceptional, being led by an Imperial house of divine origin and enjoying the protection of heaven. Alone of the peoples of Asia, the Japanese had been able to resist European colonisation, and their swift victories over China in 1894–95 and Russia in 1904–05 were evidence of Japanese fighting spirit and divine intervention. The Japanese had made themselves the equals of the Europeans in wealth and power without falling into their corrupt habits. The European colonists had made themselves rich on exploiting Asians, and so it naturally fell to the Japanese to drive them out. Anti-white racism was a significant component of Japanese militarist ideology, but it sat uneasily with a natural admiration of the wealth and power of Western civilisation and, more practically, with Japan’s wartime alliance with Germany and Italy. Was Japan going into Asia to liberate and unite its people, or was it establishing itself as a colonial power in its own right? While the militarists preached the former, they could never quite decide what position they held in reality. In a classic example of Orwellian doublethink, they often seemed to believe both ideas at once.

Several of the defendants at Tokyo were included mostly for their involvement in the rise of militarism in Japan. One was the charismatic General Araki Sadao, who combined a spartan military lifestyle with a flamboyant public persona. Araki came from a poor family and began his working life in a pickle factory, but soon found that the army offered far more opportunity than cabbages and cucumbers. Graduating from the Army Staff College at the head of his class, he rose quickly through the ranks until he became responsible for training new officers in 1928. Perhaps because of his decidedly un-samurai background he eagerly promoted his own version of the samurai ethos, including reviving the wearing of swords. Immediately upon becoming head of the Army War College he revised the General Principles of Strategic Command to remove problematic terms like ‘surrender’, ‘retreat’ and ‘defence’.12 His 1930 Moral Training for Soldiers began with a fabricated history of bushidō in which the samurai warlords who had fought for control of the country were actually motivated by loyalty to the Emperor.13

Araki’s experiences in Russia during the civil war left him with a deep dislike of bolshevism, but he also rejected Western decadence, going so far as to argue that earthquakes were good for the Japanese people as they taught them fortitude. He described his views on foreign affairs in the early 1930s: ‘We cannot let things drift any longer. We are the leading Asiatic power and we should now take matters into our own hands. We must be active, ever-expending the last portion of our national strength. We must be prepared to wage a desperate struggle. The whites have made the countries of Asia mere objects of oppression and imperial Japan should no longer let their impudence go unpunished.’14

Araki was one of the founders of the Kōdōha (Imperial Way Faction), which also included his fellow defendant Colonel Hashimoto Kingoro. Kingoro was an Army Staff College officer who believed modernisation had led to a corrupt and bureaucratic political system where drunken Diet members took bribes from zaibatsu capitalists while ignoring the plight of people in the countryside. He wrote a newspaper article calling for the end of democracy and founded an organisation called the Sakurakai (Cherry Blossom Society), which attracted idealistic young officers desiring the purification of Japan’s debased political institutions. Unsurprisingly, he was backed by Ōkawa, the writer, who shared his disdain for the foreign and amoral ideas of capitalism, liberalism and communism.

The militarists had gained power over the government indirectly, in a period of ‘government by assassination’. Hamaguchi was one victim, Prime Minister Inukai Tsuyoshi, also a leader of the Constitutional Democratic Party, was another. In May 1932 Inukai delivered a speech in which he extolled democracy and condemned fascism. In response, nine young officers from the army and navy travelled in taxis to the Yasukuni Shrine, paid their respects to Japan’s war dead, then drove on to Inukai’s official residence. ‘Let us talk,’ he said to them when they confronted him. ‘Dialogue is pointless,’ they replied, and cut him down in a hail of bullets. When the assassins were court-martialled, the court received a petition containing hundreds of thousands of signatures in favour of their release, some signed in blood. Araki, despite being a minister in Inukai’s government, publicly praised the killers’ patriotism and sincerity. They were given light sentences and soon released.

This encouraged the officers of the Kōdōha faction, but in the end they went too far with the attempted coup of 26 February 1936. The army did not support them, the Emperor turned against them, and the principal officers either committed suicide or were court-martialled and shot. But this was a military rather than a civilian decision, as by then civilian control over the military had effectively ended.

The story of the rise of Japanese militarism was an interesting one, but not in the way the prosecution presented it. Writing at the end of the trial’s second month, an AAP correspondent said it had become a ‘second-rate show’ and the attitude was ‘general apathy’. ‘Tokyo newspapers have voiced disgust with the prisoners’ shabbiness and listless attitude, and have concluded that the defendants have already decided that they have lost their case,’ he wrote. ‘The trial has been dominated by legal wrangling and the monotonous introduction of un-revealing documents and affidavits.’15

By the time the trial ended, 4,335 exhibits had been admitted in evidence, 419 witnesses had testified in person and 779 had provided written statements, and the transcript of the proceedings occupied 48,412 pages. As the months dragged on, it seemed like the prosecution had decided to punish Japan’s wartime leaders by boring them to death.

Interest picked up again with the cross-examination of the major defendants in late 1947. By then the trial had been going on for over fifteen months, and Nuremberg had ended almost a year before.

In December 1946, Keenan left on one of his unexplained absences and did not return to Tokyo for seven months. During that time, the prosecutors worked out a plan among themselves, but even though he had been away for so long, Keenan did not intend to follow it.

In October 1947, the cross-examination of Kido Kōichi began. He was no longer Lord Kido, the Japanese aristocracy having been abolished. The prosecution knew he would be a formidable witness, and so Comyns Carr made a lengthy study of him and prepared carefully. When the day came, though, Keenan insisted on doing the cross-examination himself without preparation.16 The results were less than impressive. In his lengthy statement, Kido maintained he had been an opponent of the militarists from beginning to end, he had been brought into the cabinet by Konoe to work towards an end of the China Incident, he had opposed and never given any support to the Pacific War, and he had taken action to end it. Keenan failed to elicit any new information from him, and worse (from the perspective of the prosecution), began to press him on the Emperor’s knowledge of the Pearl Harbor attack. ‘Mr Chief of Counsel, we are not trying the Emperor,’ Webb warned him.17

But keeping the Emperor out of the trial proved difficult, particularly when Tōjō took the witness stand on 27 December, bringing a crowd to the courtroom for the first time in a year and a half. ‘Tōjō’s shaven pate shone under the glare of arc lights as he walked across the courtroom with his 245-page affidavit, to the whirr of newsreel cameras,’ wrote one journalist. ‘His plain khaki military-type jacket and trousers were carefully pressed.’18

Tōjō’s defence counsel, George Blewett, read out his 50,000-word statement to the court. Tōjō took full responsibility for Japan’s actions, but maintained that Japan had fought a war of self-defence forced on it by the Western powers. He attacked the US for its anti-Asian immigration law of 1924 and Australia for the White Australia policy, and spoke at length of the support he had received from the leaders of Japanese collaborationist regimes in Asia. ‘The China incident [Second Sino-Japanese War] broke out as the result of the spread of Communism in Asia and the anti-Japanese policy of China,’ he said.19 He was careful to keep emphasising the Emperor’s ‘peace-loving spirit’, but on 31 December, when being examined by Kido’s defence attorney, William Logan, he slipped. Tōjō said in response to a question that ‘there is no Japanese subject who would go against the will of His Majesty: More, particularly, among the high officials of the Japanese Government.’20

‘You know the implications from that reply,’ said Webb. The courtroom became hushed, and Logan quickly said he had no further questions. The prosecution arranged to have Tōjō coached on how to reword his statement, and when he returned to the witness stand he corrected it, making it clear to the court that his government had pushed ahead with the attack on Pearl Harbor without the Emperor’s support.

To cross-examine the former prime minister, the prosecution had called on John Fihelly, an American war crimes trials investigator and ‘Tōjō expert’. Keenan brought him in especially from the US, intending to share the cross-examination with him. However, the court insisted on only one examination per defendant. Keenan therefore took on the task of cross-examining Tōjō himself. Fihelly left, saying, according to one witness, ‘Keenan, you fool!’21

‘I will not call you General, as there is no Japanese Army any more,’ Keenan said to Tōjō at the start of his questioning. Tōjō ignored this slight but throughout his questioning responded to Keenan and Webb using the mode of the Japanese language normally reserved for social inferiors and servants.22 This was lost in translation, but it might have amused the Japanese listeners present.

Keenan failed utterly to discredit Tōjō’s claims. Unfamiliar with the facts, he asked vague questions. In response, Tōjō asked for clarification, eventually compelling Keenan to agree to some statement or another. When arguments arose, Keenan frequently appeared to lose. After a while, it began to look like Tōjō was cross-examining Keenan. ‘Tōjō came off best,’ concluded Quilliam. Associated Press correspondent Frank L. White went further, saying the incident turned the entire trial into ‘one of the most expensive propaganda failures ever charged to American taxpayers’.23 Tōjō’s able defence became celebrated by Japanese nationalists, and his stocks rose with the Japanese public. It was, according to historian Yuma Totani, the low point of the entire prosecution at Tokyo.24