International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Winter 2014 Issue
 

International Tribunal Spotlight

 

International Military Tribunal for the Far East 
Permanent Court of International Justice

By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

It is safe to assert, in this the second decade of the 21st century, that most people, including legal professionals and even those with more than a passing familiarity with international law, know little or nothing about the war crimes tribunal that was created in Japan after World War II. They may have heard of the military tribunal at Nuremberg, Germany that conducted proceedings during roughly the same time period, immediately post-war, in 1945-1946. But the fact of the existence of a similar tribunal that functioned to try war criminals in the Pacific theatre of the war has been lost in the mists of time. In fact a survey conducted in Japan in 2006 revealed that 70 % of those questioned were “unaware of the details of the trial, a figure that arose to 90 % for survey participants in the 20-29 age group.”

The International Tribunal for the Far East, as was its sister tribunal in Nuremberg, was largely a product of United States efforts. It was created on January 19, 1946, by a decree of General Douglas MacArthur, the Supreme Commander of the Allied Powers in Japan. However General MacArthur had ordered the arrest of 39 Japanese military and political figures only one week after the signing of the Instrument of Surrender of the Japanese forces on September 2, 1945. The Tribunal actually had its genesis in two declarations by leaders of the Allied Powers (Cairo and Potsdam), in the Instrument of Surrender, and in the Moscow Conference. General MacArthur not only created the Tribunal, he approved the charter for it , which prescribed the crimes over which it would have jurisdiction and its methods of operation. The Japan Charter was similar to the London Charter which created and established the rules for the operation of the International Military Tribunal at Nuremberg.

The Far East Tribunal convened on April 29, 1946 in Tokyo. There were three types of crimes over which it had jurisdiction: crimes against peace (waging aggressive war), war crimes and crimes against humanity. The tribunal had jurisdiction over only those whose indictment included crimes against peace. As with the Nuremberg trials, defendants could also be charged with conspiracy to commit those crimes. The crimes were divided into three categories: Class A crimes were aimed at military and political officials at the very highest levels of government who could be charged with conspiracy to “start and wage war.” Class B crimes covered conventional war crimes and crimes against humanity, while Class C crimes dealt with ordering or failing to prevent the types of crimes included in Class B crimes. Prisoner abuse was the most frequent reason for charges under the last two types of crimes.

Those included in charges of Class A crimes were 28 of the highest Japanese military and political leaders, including the best known military figure in the Japanese government, General Hideki Tojo, prime minister, war minister, and ultimately Chief of the Imperial Army General Staff Office.

The composition of the court was 11 judges, all appointed by General MacArthur. The initial United States judge was Judge John P. Higgins, Chief Justice of the Massachusetts Supreme Court. He was later replaced by Major-General Myron C. Cramer, Judge Advocate General of the United States Army. All of the judges represented nations involved in the war as allies who signed the Instrument of Surrender. Japan was not allowed to have a judicial representative on the Tribunal.

The prosecution consisted of 11 prosecutors, led by the Chief Prosecutor Joseph Keenan of the United States, Assistant Attorney General and Director of the Criminal Division of the U.S. Department of Justice. The other ten, as with the judges, represented allied nations that signed the Instrument of Surrender. Joseph Keenan was appointed to the position of Chief Prosecutor by President Harry S. Truman.

The trial of the defendants charged with Class A offenses commenced on May 3, 1946,  and continued for more than two and one-half years. For the prosecution’s case, it presented the live testimony of 419 witnesses and introduced 4,336 exhibits that included depositions and affidavits from 779 additional witnesses.

More than 100 lawyers represented the defendants. Approximately 75 percent of the lawyers were Japanese, and the remainder were American lawyers. They began their defense in January, 1947 and concluded it 225 days later.

  

The Tokyo Tribunal deliberated and drafted its opinion for a period of six months. The opinion covered 1,781 pages. Five of the 11 judges issued separate opinions outside the court.

Of the original 28 defendants charged with Class A crimes, seven defendants were found guilty and sentenced to death by hanging. Sixteen were found guilty and sentenced to life imprisonment. One defendant was found guilty and sentenced to 20 years imprisonment and died while in prison in 1949.  Another defendant was found guilty and sentenced to seven years in prison. Two defendants  died of natural causes before trial. One defendant was found mentally unfit for trial and the charges against him were dropped.

By prior arrangement through the office of General MacArthur and the President of the United States, Emperor Hirohito and members of the imperial family were not prosecuted for any of the above crimes, or for any type of crime. This decision was presumably based on political considerations, including General MacArthur's belief that the Emperor’s presence in post-War Japan would be beneficial in rebuilding the war-torn country and establishing a democracy for the Japanese government.

The prosecution service for the Tokyo Tribunal, after making the charges against the 28 leading military and political leaders, decided to bring additional indictments against 42 Japanese industrial and financial leaders who supported the war through their corporations and institutions. Trials were never conducted for these individuals and they were eventually released from custody.

For Class B and Class C crimes, 5,700 Japanese persons were charged under their provisions. Many were found guilty and imprisoned, although many were released in later years after the tribunal was adjourned on November 12, 1948.

The Tokyo Tribunal, like its counterpart in Nuremberg, generated considerable criticism, much of it based on the concept of “victor’s justice.” One answer to that charge is that there were really no alternatives. Examining the way in which the biggest trial was conducted, and the limitations that were placed on defense counsel, some criticism seems justified. The criticisms include the following:

  • The United States financed the entire proceedings, thus contributing to the idea that it could not be an impartial voice on issues relating to the operations of the Tribunal and would have undue influence on it.
  • No neutral judge sat on the Tribunal. All of them represented allied nations.
  • There was no Japanese judge permitted on the Tribunal.
  • One of the judges on the Tribunal had been captured by the Japanese and had been on the Bataan Death March.
  • There was only one prosecution team, led by a U.S. government official.
  • There were almost no restrictions on the type of evidence that could be introduced by the prosecution – “hearsay objections” were not allowed;   thus documents without  proof of issuance or signature, such as “diaries, letters, press reports and sworn and unsworn statements” were readily admitted.
  • The defense had no rights of cross examination relating to the authenticity    of documents presented by the prosecution.
  • Unlike the prosecution the defendants were bound by the best-evidence rule which severely restricted the right of the defense to introduce the same types of  documents, press releases, letters, etc., that had been allowed for the prosecution.

In the present day, whenever war crimes tribunals are mentioned, and the subject is discussed, rarely is there any reference made to the Tokyo trials. Perhaps that is because the operation of the Tribunal was so unfairly conducted.

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© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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