International Military Tribunal for the Far East
The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial and the Tokyo War Crimes Tribunal, was a military trial convened on 29 April 1946 to try leaders of the Empire of Japan for their crimes against peace, conventional war crimes, and crimes against humanity, leading up to and during the Second World War.[1] The IMTFE was modeled after the International Military Tribunal (IMT) at Nuremberg, Germany, which prosecuted the leaders of Nazi Germany for their war crimes, crimes against peace, and crimes against humanity.[2]
For the documentary, see International Military Tribunal for the Far East (film).International Military Tribunal for the Far East
April 29, 1946
Following Japan's defeat and occupation by the Allies, the Supreme Commander of the Allied Powers, United States General Douglas MacArthur, issued a special proclamation establishing the IMTFE. A charter was drafted to establish the court's composition, jurisdiction, and procedures; the crimes were defined based on the Nuremberg Charter. The Tokyo War Crimes Tribunal was composed of judges, prosecutors, and staff from eleven countries that had fought against Japan: Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, the Soviet Union, the United Kingdom, and the United States; the defense consisted of Japanese and American lawyers. The Tokyo Trial exercised broader temporal jurisdiction than its counterpart in Nuremberg, beginning from the 1931 Japanese invasion of Manchuria. Twenty-eight high-ranking Japanese military and political leaders were tried by the court, including current and former prime ministers, cabinet members, and military commanders. They were charged with fifty-five separate counts, including the waging wars of aggression, murder, and various war crimes and crimes against humanity (such as torture and forced labor) against prisoners-of-war, civilian internees, and the inhabitants of occupied territories; ultimately, 45 of the counts, including all the murder charges, were ruled either redundant or not authorized under the IMTFE Charter. The Tokyo Trial lasted more than twice as long as the better-known Nuremberg trials, and its impact was similarly influential in the development of international law; similar international war crimes tribunals would not be established until the 1990s.[3]
By the time it adjourned on November 12, 1948, two defendants had died of natural causes and one, Shūmei Ōkawa, was ruled unfit to stand trial. All remaining defendants were found guilty of at least one count, of whom seven were sentenced to death and sixteen to life imprisonment.
Thousands of other "lesser" war criminals were tried by domestic tribunals convened across Asia and the Pacific by Allied nations, with most concluding by 1949. Due to U.S. government intervention, the trials failed to bring to justice imperial Japanese leaders responsible for Unit 731.[4]
Other war crimes trials[edit]
More than 5,700 lower-ranking personnel were charged with conventional war crimes in separate trials convened by Australia, China, France, the Netherlands Indies, the Philippines, the United Kingdom, and the United States. The charges covered a wide range of crimes including prisoner abuse, rape, sexual slavery, torture, ill-treatment of laborers, execution without trial, and inhumane medical experiments. The trials took place in around fifty locations in Asia and the Pacific. Most trials were completed by 1949, but Australia held some trials in 1951.[25] China held 13 tribunals, resulting in 504 convictions and 149 executions. Of the 5,700 Japanese individuals indicted for Class B war crimes, 984 were sentenced to death; 475 received life sentences; 2,944 were given more limited prison terms; 1,018 were acquitted; and 279 were never brought to trial or not sentenced.[26]
The Soviet Union and Chinese Communist forces also held trials of Japanese war criminals. The Khabarovsk War Crime Trials held by the Soviets tried and found guilty some members of Japan's bacteriological and chemical warfare unit, also known as Unit 731. However, those who surrendered to the Americans were never brought to trial. As Supreme Commander for the Allied Powers, MacArthur gave immunity to Shiro Ishii and all members of the bacteriological research units in exchange for germ warfare data based on human experimentation. On May 6, 1947, he wrote to Washington that "additional data, possibly some statements from Ishii probably can be obtained by informing Japanese involved that information will be retained in intelligence channels and will not be employed as 'War Crimes' evidence."[27] The deal was concluded in 1948.[28][29]
Criticism[edit]
Charges of victors' justice[edit]
The United States had provided the funds and staff necessary for running the Tribunal and also held the function of Chief Prosecutor. The argument was made that it was difficult, if not impossible, to uphold the requirement of impartiality with which such an organ should be invested. This apparent conflict gave the impression that the tribunal was no more than a means for the dispensation of victors' justice. Solis Horowitz argues that IMTFE had an American bias: unlike the Nuremberg trials, there was only a single prosecution team, led by an American, although the members of the tribunal represented eleven different Allied countries.[30] The IMTFE had less official support than the Nuremberg trials. Keenan, a former U.S. assistant attorney general, had a much lower position than Nuremberg's Robert H. Jackson, a justice of the U.S. Supreme Court.
Justice Jaranilla had been captured by the Japanese and walked the Bataan Death March.[31] The defense sought to remove him from the bench claiming he would be unable to maintain objectivity. The request was rejected but Jaranilla did excuse himself from presentation of evidence for atrocities in his native country of the Philippines.[32]
Justice Radhabinod Pal argued that the exclusion of Western colonialism and the atomic bombings of Hiroshima and Nagasaki from the list of crimes and the lack of judges from the vanquished nations on the bench signified the "failure of the Tribunal to provide anything other than the opportunity for the victors to retaliate".[33] In this he was not alone among Indian jurists, with one prominent Calcutta barrister writing that the Tribunal was little more than "a sword in a [judge's] wig."
Justice Röling stated, "[o]f course, in Japan we were all aware of the bombings and the burnings of Tokyo and Yokohama and other big cities. It was horrible that we went there for the purpose of vindicating the laws of war, and yet saw every day how the Allies had violated them dreadfully."
However, in respect to Pal and Röling's statement about the conduct of air attacks, there was no positive or specific customary international humanitarian law with respect to aerial warfare before and during World War II. Ben Bruce Blakeney, an American defense counsel for Japanese defendants, argued that "[i]f the killing of Admiral Kidd by the bombing of Pearl Harbor is murder, we know the name of the very man who[se] hands loosed the atomic bomb on Hiroshima," although Pearl Harbor was classified as a war crime under the 1907 Hague Convention, as it happened without a declaration of war and without a just cause for self-defense. Prosecutors for Japanese war crimes once discussed prosecuting Japanese pilots involved in the bombing of Pearl Harbor for murder. However, they quickly dropped the idea after realizing there was no international law that protected neutral areas and nationals specifically from attack by aircraft.[nb 1][34]
Similarly, the indiscriminate bombing of Chinese cities by Japanese Imperial forces was never raised in the Tokyo Trials in fear of America being accused of the same thing for its air attacks on Japanese cities. As a result, Japanese pilots and officers were not prosecuted for their aerial raids on Pearl Harbor and cities in China and other Asian countries.[35]
Pal's dissenting opinion[edit]
Indian jurist Radhabinod Pal raised substantive objections in a dissenting opinion: he found the entire prosecution case to be weak regarding the conspiracy to commit an act of aggressive war, which would include the brutalization and subjugation of conquered nations. About the Nanking Massacre—while acknowledging the brutality of the incident—he said that there was nothing to show that it was the "product of government policy" or that Japanese government officials were directly responsible. There is "no evidence, testimonial or circumstantial, concomitant, prospectant, restrospectant, that would in any way lead to the inference that the government in any way permitted the commission of such offenses," he said.[33] In any case, he added, conspiracy to wage aggressive war was not illegal in 1937, or at any point since.[33] In addition, Pal thought the refusal to try what he perceived as Allied crimes (particularly the use of atomic bombs) weakened the tribunal's authority. Recalling a letter by Kaiser Wilhelm II signalling his determination to bring World War I to a swift conclusion through brutal means if necessary, Pal stated that "This policy of indiscriminate murder to shorten the war was considered to be a crime. In the Pacific war under our consideration, if there was anything approaching what is indicated in the above letter of the German Emperor, it is the decision coming from the Allied powers to use the bomb", adding that "Future generations will judge this dire decision".[36] Pal was the only judge to argue for the acquittal of all of the defendants.[24]
Exoneration of the imperial family[edit]
The Japanese emperor Hirohito and other members of the imperial family might have been regarded as potential suspects. They included career officer Prince Yasuhiko Asaka, Prince Fushimi Hiroyasu, Prince Higashikuni, and Prince Takeda.[37][38] Herbert Bix explained, "The Truman Administration and General MacArthur both believed the occupation reforms would be implemented smoothly if they used Hirohito to legitimise their changes."[39]
As early as November 26, 1945, MacArthur confirmed to Admiral Mitsumasa Yonai that the emperor's abdication would not be necessary.[40] Before the war crimes trials actually convened, SCAP, the International Prosecution Section (IPS), and court officials worked behind the scenes not only to prevent the imperial family from being indicted, but also to skew the testimony of the defendants to ensure that no one implicated the emperor. High officials in court circles and the Japanese government collaborated with Allied GHQ in compiling lists of prospective war criminals. People arrested as Class A suspects and incarcerated in the Sugamo Prison solemnly vowed to protect their sovereign against any possible taint of war responsibility.[40]
According to historian Herbert Bix, Brigadier General Bonner Fellers "immediately on landing in Japan went to work to protect Hirohito from the role he had played during and at the end of the war" and "allowed the major criminal suspects to coordinate their stories so that the emperor would be spared from indictment."[41]
Bix also argues that "MacArthur's truly extraordinary measures to save Hirohito from trial as a war criminal had a lasting and profoundly distorting impact on Japanese understanding of the lost war" and "months before the Tokyo tribunal commenced, MacArthur's highest subordinates were working to attribute ultimate responsibility for Pearl Harbor to Hideki Tōjō."[42] According to a written report by Shūichi Mizota, Admiral Mitsumasa Yonai's interpreter, Fellers met the two men at his office on March 6, 1946, and told Yonai, "It would be most convenient if the Japanese side could prove to us that the emperor is completely blameless. I think the forthcoming trials offer the best opportunity to do that. Tōjō, in particular, should be made to bear all responsibility at this trial."[43][44]
Historian John W. Dower wrote that the campaign to absolve Emperor Hirohito of responsibility "knew no bounds." He argued that with MacArthur's full approval, the prosecution effectively acted as "a defense team for the emperor," who was presented as "an almost saintly figure" let alone someone culpable of war crimes.[40] He stated, "Even Japanese activists who endorse the ideals of the Nuremberg and Tokyo charters and who have labored to document and publicize the atrocities of the Shōwa regime cannot defend the American decision to exonerate the emperor of war responsibility and then, in the chill of the Cold War, release and soon afterwards openly embrace accused right-winged war criminals like the later prime minister Nobusuke Kishi."[45]
Three justices wrote an obiter dictum about the criminal responsibility of Hirohito. Judge-in-Chief Webb declared, "No ruler can commit the crime of launching aggressive war and then validly claim to be excused for doing so because his life would otherwise have been in danger ... It will remain that the men who advised the commission of a crime, if it be one, are in no worse position than the man who directs the crime be committed."[22]
Justice Henri Bernard of France concluded that Japan's declaration of war "had a principal author who escaped all prosecution and of whom in any case the present Defendants could only be considered as accomplices."[23]
Justice Röling did not find the emperor's immunity objectionable and further argued that five defendants (Kido, Hata, Hirota, Shigemitsu, and Tōgō) should have been acquitted.
Failure to prosecute perpetrators of inhumane medical experimentation[edit]
Shirō Ishii, commander of Unit 731, received immunity in exchange for data gathered from his experiments on live prisoners. In 1981 John W. Powell published an article in the Bulletin of the Atomic Scientists detailing the experiments of Unit 731 and its open-air tests of germ warfare on civilians.[46] It was printed with a statement by Judge Röling, the last surviving member of the Tokyo Tribunal, who wrote, "As one of the judges in the International Military Tribunal, it is a bitter experience for me to be informed now that centrally ordered Japanese war criminality of the most disgusting kind was kept secret from the Court by the U.S. government".[47]
Failure to prosecute other suspects[edit]
Forty-two suspects, such as Nobusuke Kishi, who later became Prime Minister, and Yoshisuke Aikawa, head of Nissan, were imprisoned in the expectation that they would be prosecuted at a second Tokyo Tribunal but they were never charged. They were released in 1947 and 1948.
Failure to prosecute Japan's atrocities against its nationals as crimes against humanity[edit]
Despite Class C charges being created to prosecute Japan for atrocities against its nationals, this never occurred at all. Britain, France, Netherlands, and the U.S.—four-nation members of the Tokyo trials—had colonies themselves and feared that their own colonial atrocities might be brought to account for crimes against humanity. As a consequence, this left the Korean and Taiwanese victims of Japanese colonial atrocities without any recourse in the international legal system.[11][12]
