It has been suggested that the Tokyo Trial is the "biggest trial in recorded history".¹ If this is the case, then one must ask why analysis of the subject has been overlooked for so many years especially given its alleged notoriety.² All twenty-five Japanese defendants who survived the trial, ranging from prime ministers, civilian diplomats to military generals, were found guilty and their sentences ranged from death down to seven years.³

 Unlike the Nuremberg Trials, there were no acquittals at Tokyo⁴ and the history of the trial procedures have been "stained" with controversy since the handing down of the "majority opinion", which was written by only seven of the eleven presiding justices.⁵ As with the Nuremberg Charter drawn up by the "Big Four" at the London Conference in 1945,⁶there was an ex post facto call for a "just and prompt trial and punishment of the major war criminals in the Far East".⁷Perhaps this ex post facto usage is one explanation as to why the traditional rules of law seem to have been overlooked or "abused" during the trial.

Prior to 1945 there was no single existing treaty or tribunal to give a clear definition of "international crimes "or "established punishments".⁸ Arguably, the victorious Allied nations in their haste to "mete out justice" to the defeated Japanese, established a unique but highly defective precedent in the Tokyo Charter. It was a precedent so defective in fact, that no nation since1945 has been tried under the same circumstances.

Basis of the Trial

The Tribunal was called upon to consider three major crimes, "crimes against peace", "crimes against humanity", and the "crime of aggressive war".¹² The defendants were accused of "crimes against peace", and other charges subsequently followed.¹³ "Orders or position would not allow defendants to escape responsibility".¹⁴

The key point here is that two new crimes had been added ex post facto to the Nuremberg and Tokyo Charters. These were, "crimes against peace" and "crimes against humanity". The former was directed at the "planning and preparation" of" aggressive wars" which were in violation of international treaties, hence, conspiracy. The latter, "crimes against humanity" constituted" inhumane acts committed against any civilian population, before or during the war...".¹⁵

There were twenty-eight Japanese defendants. All had been top ranking officials and held prominent positions in the Japanese hierarchy. All pleaded not guilty. The only defendant who had not been involved in politics had been Field Marshal Hata. There were five former prime ministers, Hiranuma, Hirota, Kioso, Suzuki and Tojo. The most prominent, Tojo Hideki, had served as Prime Minister and War Minister during the assault on Pearl Harbour, in addition to a short period as chief of Army General Staff.

Fourteen were ranked "generals" in the Imperial Japanese Army. Seven of these had served as war minister while nine had held commands during the war. Three of the defendants were admirals in the Japanese Imperial Navy. There were five civilians who were career diplomats, including Hirota Koki who had served as Foreign Minister and Prime Minister from 1936-1937 and Shigemitsu Mamoru who had served as Foreign Minister from 1943-1944. There were also "bureaucrats," one politician and Okawa Shumei the propagandist.¹⁶

Eleven justices, who acted as "judge and jury", were chosen to determine the issue. Each of the Allied nations had one justice and at least one prosecutor. The nations represented were, Australia, Canada, China, France, Great Britain, India, the Netherlands, and the United States. Each of the defendants was permitted Japanese and American defense counsel if required.¹⁷ There were to be no justices from Japan or neutral nations.

George Furness, a Defence Counsel stated,

Justice Roling stated "I think that not only should there have been neutrals in the court, but there should have been Japanese also."¹⁹ He also argued that they would always have been a minority and therefore, would not have been able to sway the balance of the trial, however, "they could have convincingly argued issues of government policy which were unfamiliar to the Allied justices".²⁰

Neither Napoleon nor the German leadership of World War 1 had been placed on trial, and therefore one of the biggest problems arising out of the Nuremberg and Tokyo Trials was the lack of precedent for them to follow. Consequently, both trials set a precedent for later history to observe. Chief Justice Keenan of America at the Nuremberg Trial stated, "Individuals are being brought to the bar of justice for the first time in history to answer personally for offences that they have committed while acting in official capacities as chiefs of state. We freely concede that these trials are in that sense without precedent and we are keenly aware of the dangers of proceeding in the absence of precedent".²¹

The Charter of the Tribunal claimed that there was present in Japan from January 1 1928 to September 2 1945 a "criminal, militaristic clique," and that the defendants "intended to and did plan, prepare, initiate, or wage aggressive war". Such actions were deemed to be "in violation of international law, as well as in violation of sacred treaty commitments, obligations, and assurances".²²

There were fifty-five specific counts to the" indictment" of which thirty-six represented "crimes against peace," sixteen representing murder which included "Crimes Against Peace", "Conventional War Crimes", "Crimes Against Humanity", and three representing conventional war crimes and crimes against humanity.²³ All prosecutors signed the indictment and on May 3 1946 all the defendants pleaded not guilty except the propagandist Okawa who was deemed mentally unfit to stand trial.²⁴

In their defence "the accused challenged the legality of the Tribunal under the instrument of surrender and the Potsdam Declaration".²⁵ The defence counsel challenged the jurisdiction of the Tribunal on seven counts. On what authority could the charge, "Crimes against Peace" be included. "Aggressive war was not per se illegal"²⁶ and the Pact of Paris did not constitute war as a crime: "War is the act of a nation for which there is no individual responsibility under international law".²⁷"The provisions of the Charter are "ex post facto"  legislation and therefore illegal".²⁸

These four challenges the Tribunal was "formally bound to reject" because it found the law of the Charter "decisive and binding upon it".²⁹ The fifth challenge argued that the Declaration of Potsdam concerned only conventional war crimes, not aggressive war as a crime. The reply to this challenge was that "[an]aggressive war was a crime in international law long prior to the date of the Declaration of Potsdam".³⁰ The sixth challenge argued "[t]hat killing in war is not murder". The Tribunal replied that the charges would be dropped if the war was deemed lawful.³¹ The final challenge, concerned the rights of the prisoners, this was also dismissed.³²

Although there were five main questions asked of international law to be addressed, it is significant to note that Mr Justice Pal of India was the only justice who had a background in internationallaw^.33 Pal argued that the crime of conspiracy had never been defined under international law.³⁴ Justice Webb of Australia also concurred, that a crime of "naked conspiracy" was not covered by international law.³⁵

The crime of conspiracy had been constructed specifically for the Nuremberg Trial.³⁶ The reason for the conspiracy clause was to make sure that those obviously guilty of conspiracy were found guilty.³⁷ In the words of the British representative at the London Conference, "[w]hat is in my mind is getting a man like Ribbentrop or Ley... Now I want words that will leave no doubt that men who have originated the plan or taken part in the early stages of the plan are going to be within the jurisdiction of the tribunal".³⁸R. H Minear in his book Victor’s Justice-The Tokyo War Crimes Trial argues that "the net of conspiracy can be as wide as the prosecution wishes to make it".³⁹

The crime of "individual responsibility", was denounced by Kenzo Takayanagi, Chief Defence Counsel, as "perfectly revolutionary".⁴⁰ The Americans at Versailles in 1919 had rejected this law, as had the French at the London Conference in 1945.Even so, a majority judgement ruled in favour of finding the defendants guilty of the crime of individual responsibility. To support this finding the Nuremberg Judgement was quoted: "The principle of international law which under certain circumstances protects the representatives of a state cannot be applied to acts which are condemned as criminal by internationallaw".⁴¹

The defence questioned the proposal that aggressive war was "a crime". The Americans had "pushed" for this article at the London Conference in 1945.⁴² However, Great Britain and the United States had both denied this in 1944 and so had France in1945.⁴³ Takayanagi argued that although aggressive war did constitute a crime according to the 'Pact of Paris', nowhere did it define the right of self-defence of one's own country.⁴⁴

Did negative criminality exist? The Americans said "no" to this crime in 1919^.45 Negative criminality is the premise that those who are in charge have a responsibility to prevent criminal actions by their subordinates. This means that if those in charge are aware of crimes being committed then they must take steps to stop these crimes and punish the offenders. The "big question" in relation to this crime is whether or not you can successfully prove prior knowledge or lack of it.⁴⁶

The final case against the international law employed at Tokyo was that the Tokyo Charter consisted of ex post facto or retroactive legislation.⁴⁷ "The legal categories of the crimes against peace and humanity have been criticised as ex post facto legislation on the part of the London Conference, in that these crimes did not exist in international law prior to 1945".⁴⁸ In relation to the crime of conspiracy, "which was the linchpin of the charge of the crime against peace", Justice Roling argued that this was a "legal concept" unique to Anglo-Saxon jurisprudence before the Charters.⁴⁹ "The prohibition of ex post facto law" has no answer to the argument that, one should not be punished for an act that was not deemed illegal at the time it was committed.⁵⁰

There are two procedures that the trial could follow; the Anglo-Saxon and the Continental system.⁵¹ The Tokyo Tribunal was conducted according to the Anglo-Saxon system.

This is an adversarial system whereby the prosecution and the defence bring forward evidence to prove their respective cases. The judge considers the evidence and then provides the verdict.⁵²There are many technical rules of evidence, the judge is more passive and" the purpose and result of such a trial is not the real truth, but the trial-truth".⁵³

In contrast, the Continental system attempts to find the "real truth" and the trial takes on a more "inquisitorial character".⁵⁴ The judge in this case is a "legal expert" and therefore, will take into consideration anything which he believes will lead to the truth. There is less need for technical rules of evidence. Both Justice Pal and Roling voiced their criticisms of the Anglo-Saxon system especially concerning the inconsistent rules of evidence.⁵⁵

When the verdict was read, some two and a half years after the trial began, all twenty-five defendants were found guilty. Two of the defendants had died during the trial and Okawa had been deemed unfit to stand trial although he was released shortly after the trial ended. The defendants were found guilty of "intricate preparation" for the "waging of wars of aggression",⁵⁶ against China, the U.S.A., the British Commonwealth, the Netherlands, France, the U.S.S.R., and the Mongolian People's Republic, plus two counts of conventional war crimes.⁵⁷ Only two defendants were not convicted of conspiracy, however, these two were still convicted of aggressive and conventional war crimes.

Seven men were sentenced to death by hanging including Tojo and Hirota, former Prime Ministers and five generals. Sixteen of the defendants received life imprisonment, one twenty years and one seven years.⁵⁸ In the words of Minear, "[t]o be sure, no one was convicted on all counts, but no one was acquitted on all counts either".⁵⁹

The Tokyo Trial has raised many questions. It has been argued that, "The rules of evidence at the Tokyo Trial functioned to facilitate the prosecution and impede the defence".⁶⁰It was stated at the London Conference, "that it is for the Tribunal to decide whether the evidence has value in the direction of proof even though a national code may not allow proof in that form".⁶¹

The indictment was only concerned with the acts of Japanese individuals regardless of similar infringements committed by the victorious nations. Any reference to these matters was deemed inadmissible evidence.⁶² The Soviet Union had declared war against Japan thus breaking an existing treaty and were guilty of crimes against peace.⁶³The dropping of two atomic bombs should have found the Americans guilty of crimes against humanity.⁶⁴

Arguably, "[at] Tokyo there were five justices (of eleven) to whom exception might have been taken for one reason or another".⁶⁵ The Chinese justice was a politician not a judge in his own country. The Russian justice could speak neither English, nor Japanese, the official languages of the Trial. The Filipino justice, who claimed the sentences were not severe enough, had been a prisoner of war for most of the war and had been a survivor of the famous "Bataan death march".⁶⁶ The second American justice, Major General Myron H. Cramer had previously submitted to President Roosevelt, a legal document concerning the responsibility for the attack on Pearl Harbour. Finally, President Webb had been the "Australian war crimes commissioner" and during the war had "investigated Japanese war crimes on New Guinea".⁶⁷

Given the standing of the defendants and the severity of the charges, the primary question remains why had Emperor Hirohito not been indicted and why had he not been called to give testimony? Twenty-three men in his service were found guilty of conspiracy to wage war, when surely Hirohito was responsible. "A record was made of the statement in which the Emperor informed Japan of his decision to capitulate. When that imperial decision was broadcast, the whole of Japan knew that the war was over".⁶⁸

Justice Webb stated, "[t]he authority of the Emperor was proved beyond question when he ended the war....".⁶⁹At the beginning of January 1946 a secret order was circulated from the U.S. Joint Chiefs of Staff stating that the Emperor was not to be indicted or called as a witness.⁷⁰ It was later discovered in 1949, that the "U.S. State Department added [on] January 14  that all 11of Japan's enemies, including Russia, agreed to exempt Hirohito to facilitate Japan's surrender and occupation of the country".⁷¹

In reference to the question of conspiracy, Takayanagi quoted the western legal scholar Francis B. Sayre in saying"[i]t is a doctrine 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 ever heard of it. Furthermore, Sayre argues that, "[u]nder such a principle everyone who acts in cooperation with another may some day find his liberty dependant upon the innate prejudices or social bias of an unknown judge. It is the very antithesis of justice according to law".⁷²

Hirota and Shigemitsu had always advocated" Asia for the Asians" by implementing diplomatic and economic policies not military force. Without a Hitler, organisations like the S.S. or the Gestapo, where was the evidence of a conspiracy?

The final judgement took seven months to write and consisted of 664 pages. This was written by a majority of seven justices from Canada, China, New Zealand, the Philippines, the Soviet Union, the United Kingdom and the United States.⁷³ The majority had not been deliberated among the 11 justices "they just decided among themselves to write the judgement".⁷⁴ After the majority had completed the judgement, they presented it to the remaining four justices, Bernard, Pal, Roling and Webb. Both Pal and Roling saw this as a "serious violation" of the Charter.⁷⁵

Three justices wrote separate dissenting opinions, Henry Bernard from France, Radhabinod Pal from India and B.V.A Roling from the Netherlands. Sir William Webb from Australia also wrote a separate opinion. Bernard "dissented on two procedural grounds and on the ground that the Japanese Emperor had not been indicted".⁷⁶

Furthermore, he stated "[a] verdict reached by a tribunal after a defective procedure cannot be a valid one".⁷⁷Pal dissented on several grounds, firstly, that "no conspiracy had been proved; rules of evidence had been slanted in favour of the prosecution; aggressive war was not a crime in international law; even the conventional war crimes had not been proved".⁷⁸

Pal argued that all the defendants were innocent on all charges and therefore, should be acquitted.⁷⁹ Roling did not agree with the death sentence for Hirota, he argued that he "had not been proven guilty on any charge".⁸⁰ He argued that Oka, Sato and Shimada, all military men, "should have been sentenced to death instead of life imprisonment".⁸¹ Finally, he argued that "one military man: Hata, and three politicians, Kido, Shigemitsu and Toga....should instead have been acquitted".⁸² Webb was against the death penalty and argued that the Tribunal could not justify the guilt of some of the Emperors closest advisers when he himself was not indicted or called on to testify.⁸³

It was not until 1977, that the whole judgement of the Tokyo Tribunal was published by B.V.A. Roling, and R. F. Rutter. This included the majority judgement, the three dissenting opinions by Bernard (France), Pal (India) and Roling (the Netherlands), the separate opinion by President Webb (Australia) and the concurring opinion of Jaranilla(the Philippines). This is in contrast to the forty-two volumes that have been published by the British and Americans in French and English on the Nuremberg Tribunal.⁸⁴

The lack of access to the total Trial documents until 1977 may suggest an element of shame as to the outcome of the Tribunals. It may also disguise a fear that the precedent set at these trials was potentially dangerous to individual rights. Furthermore, any country that had waged a war between 1945 and 1977 could, by precedent, be indicted by a similar Tribunal.

There have been no prosecutions for the crime against peace since the Nuremberg and Tokyo Trials in 1945. Nevertheless, "there have been about thirty international wars and more than a hundred civil wars"^.85 How can we justify the Tokyo Charter that sentenced career diplomats to death supposedly for conspiracy, when the question of command responsibility by the American military in Vietnam has been swept under the premise of "victors justice".

It is my opinion that the Tokyo Tribunal was a classic case of "victors vengeance". This is demonstrated in so many circumstances related to the trial, including inconsistent rules of evidence, ex post facto or retroactive legislation, failure to indict the Emperor, the flimsy charge of conspiracy, exception to five of the justices, individual responsibility, no acquittals and the contrast to international law.

This was a political show piece, a sham, a demonstration of the might and power of the victorious nations. The precedent was constructed in defiance of international law for the purpose of retribution. These trials were conducted to demonstrate that crime does not pay. All they have shown is that the victor is in the most commanding position to determine the course of history.

ENDNOTES:

¹ B. V. A. Roling & Antonio Cassese, The Tokyo Trial and Beyond, (Cambridge 1993), p. 81.

² Roling, p. 81.

³ R. H. Minear, VictorÕs Justice: The Tokyo War Crimes Trial, (Princeton, 1973), p. 5.

⁴ Roling, p. 5.

⁵ Ibid., p. 61.

⁶ Minear, p. 20.

⁷ Ibid., p. 21.

⁸ Ibid., p. 35.

⁹ Roling, p. 87.

¹⁰ Solis Horwitz, "The Tokyo Trial, "International Conciliation, 465 (November, 1950), p. 480.

¹¹ Horwitz, p. 480.

¹² Minear, p. 21.

¹³ Ibid., p. 21.

¹⁴ Ibid.

¹⁵ Text of the Nuremberg Charter in "International Conference on Military Trials," Department of State publication No.3080 (Washington, 1949), pp. 422-428. hereafter London Conference.

¹⁶ Minear, p. 4.

¹⁷ Ibid., p. 23.

¹⁸ Proceedings of the International Military Tribunal for the Far East, (mimeo; hereafter Proceedings), p.200.

¹⁹ Roling, p. 87.

²⁰ Ibid., p. 87.

²¹ "Trial of Japanese War Criminals," p. 31. The decisions Keenan specifies are those of Ex parte Quirin,(317 U.S. I) and In re Yamashita, (327 U.S. I).

²² "Trial of Japanese War Criminals," pp. 45-46.

²³ The Indictment can be found in "Trial of Japanese War Criminals," pp. 45-63.

²⁴ Roling, p. 2.

²⁵ Minear, p. 25.

²⁶ Ibid., p. 26-27.

²⁷ Ibid.

²⁸ Ibid.

²⁹ Text in Judgement of the International Military Tribunal for the Far East, (mimeo, November, 1948; hereafter Judgement), p. 24

³⁰ Judgement, p. 36

³¹ Ibid., p. 36.

³² Ibid., p. 28.

³³ Minear, p. 86.

³⁴ Justice Pal, Judgement, p. 574.

³⁵ President Webb (Australia), "Separate Opinion of the President", pp. 8-9

³⁶ London Conference, pp. 422-428.

³⁷ Ibid., pp. 422-428.

³⁸ Ibid., p. 301.

³⁹ Minear, p. 37.

⁴⁰ Kenzo Takayanagi, The Tokyo Trials and International Law, (Tokyo, 1948), p. 59.

⁴¹ Minear, p. 46.

⁴² United Nations War Crimes Commission, History of the United Nations War Crimes Commission, (London, 1948),p. 181.

⁴³ Minear, p. 49.

⁴⁴ Takayanagi, p. 36-37.

⁴⁵ Minear, p. 72.

⁴⁶ Roling, p. 70.

⁴⁷ Minear, p. 72.

⁴⁸ Roling, p. 5.

⁴⁹ Ibid.

⁵⁰ Ibid., p. 66.

⁵¹ Ibid., p. 50.

⁵² Ibid.

⁵³ Ibid.

⁵⁴ Ibid.

⁵⁵ Ibid.

⁵⁶ Judgement, pp. 1,138-1, 139.

57 Ibid.

⁵⁸ Minear, p. 31.

⁵⁹ Ibid., p. 31.

⁶⁰ Ibid., p. 123.

⁶¹ Ibid., p. 118.

⁶² Ibid., p. 122.

⁶³ Ibid., p. 95-99.

⁶⁴ Ibid.

⁶⁵ Ibid., p. 81.

⁶⁶ Ibid., p. 82.

⁶⁷ Ibid., p. 82.

⁶⁸ Roling, p. 111.

⁶⁹ President Webb, "Separate Opinion," pp. 18-19.

⁷⁰ Minear, p. 112.

⁷¹ Ibid.

⁷² Francis B. Sayre, "Criminal Conspiracy,"35 Harvard Law Review, 1922, pp. 427, 413; quoted in Takayanagi, p. 15, 16.

⁷³ Roling, p. 62.

⁷⁴ Ibid.

⁷⁵ Ibid., p. 63.

⁷⁶ Justice Bernard (France), "Dissenting Judgement," p. 1.

⁷⁷ Bernard, p. 20.

⁷⁸ Justice Pal (India), "Judgement," later published under the title International Military Tribunal for the Far East; Dissentient Judgement, (Calcutta, 1953).

⁷⁹ Minear, p. 32.

⁸⁰ Roling, p. 5.

⁸¹ Ibid.

⁸² Ibid.

⁸³ Webb, "Separate Opinion," pp.18-19.

⁸⁴ Roling, p.6.

⁸⁵ Ibid., p. 86.

Horwitz, Solis, The Tokyo Trial: International Conciliation, 465, (November, 1950).

Minear, R. H, Victor’s Justice: The Tokyo War Crimes Trial, (Princeton, 1973).

Pal, Radhabinod, International Military Tribunal for the Far East; Dissentient Judgement, (Calcutta, 1953).

Roling, B. V. A. & Casseses, Antonio, The Tokyo Trial and Beyond, (Cambridge, 1993).

Sayre, Francis, B "Criminal Conspiracy",35 Harvard Law Review, 1922.

Takayanagi, Kenzo, The Tokyo Trials and International Law, (Tokyo, 1948).

Text in Judgement of the Military Tribunal for the Far East, (November, 1948).

Text of the Nuremberg Charter in International Conference on Military Trials, Department of State Publication No.3080, (Washington, 1949).

United Nations War Crimes Commission, History of the United Nations War Crimes Commission, (London, 1948)