Analysis: Establishment and Proceedings of the Tribunal

Date: November 1948

Author: International Military Tribunal for the Far East

Genre: government document

Summary Overview

By the end of World War II, the world had experienced brutality and human rights violations on a massive scale, and the international community demanded that the leaders of Germany and Japan be held responsible. In addition, the 1928 Kellogg-Briand Pact that prohibited war against peaceful countries provided a framework within which war itself could be declared a war crime. The first international war crimes tribunals were established to seek some measure of justice through the prosecution of high-ranking military and political officials. The United States, Great Britain, France, and the Soviet Union established the International Military Tribunal in Nuremberg, Germany, to prosecute “the major war criminals of the European Axis,” mostly senior Nazi political and business leaders. The International Military Tribunal for the Far East (IMTFE) was created in Tokyo, Japan, to prosecute senior Japanese officials. The IMTFE was established in January 1946, with a charter approved by US general Douglas MacArthur, who was the Allied leader in occupied Japan. It convened in late April 1946 and adjourned on November 12, 1948.

Defining Moment

In the Cairo Declaration of 1943, the United States, Great Britain, and China promised to “punish the aggression of Japan.” The Allies used the term “war criminals” in the July 1945 Potsdam Declaration, which also demanded Japan's “unconditional surrender.” In December, at the Moscow Conference of 1945, the United States, Great Britain, China, and the Soviet Union (which by then was at war with Japan as well) named General MacArthur as the ultimate authority in occupied Japan and authorized to carry out the “occupation and control” of Japan as he saw fit. In his role as Supreme Commander for the Allied Powers, MacArthur first arrested many top Japanese military leaders and, in January 1946, issued the proclamation and charter that established the IMTFE.

The charter laid out the selection of judges and prosecution teams from countries that had signed the Japanese surrender document. It laid out the categories for prosecution, which mirrored the Nuremburg trials. Defendants were charged with “crimes against peace,” or the planning and waging of war; “war crimes,” or violations of the laws of war; and “crimes against humanity,” violations of human rights. Charges reached back as far as 1928 to the first Japanese invasions. There was no specific defense in the charter, though the accused were allowed to have a lawyer. When Japanese counsel had difficulty following Western-style legal proceedings, an American lawyer was also assigned to each defendant.

During the two-and-a-half years that the IMTFE was in session, twenty-eight Japanese officials were indicted, and nine political leaders and eighteen military were prosecuted. One was deemed mentally unfit to stand trial and thus not prosecuted. All were accused of crimes against peace, with additional charges brought if appropriate. MacArthur selected Joseph B. Keenan as chief prosecutor. The Japanese emperor Hirohito was not indicted and was allowed to retain his title. The IMTFE trials ran from May 1946 to November 1948. The language and cultural barriers between the prosecution and the defendants and between the judges proved very difficult and simultaneous translation nearly impossible. The verdicts were announced on November 4, 1948, and the court passed sentence between November 4 and 12. Two of the accused, foreign-affairs minister Matsuoka Yosuke and naval minister Nagano Osami, had died during the trial, and another seven were sentenced to death by hanging, which was carried out on December 23, 1948. Sixteen other defendants were sentenced to life imprisonment. Two others received shorter prison sentences. Four died in prison, and the rest were paroled in the 1950s.

Other trials were held after the IMTFE to try lower-level war criminals, but these were not international tribunals dealing with the larger issue of waging war as a crime. Both the Nuremberg and the Tokyo trials were the first tests of international criminal law and served as models for the prosecution of later war crimes.

Author Biography

Each country among the Allied Powers was represented by a justice in the tribunal. American major-general Myron Cady Cramer replaced John Patrick Higgins early in the proceedings. India and the Philippines also lobbied to have justices on the tribunal, raising the initial number allotted from nine to eleven. Thus, comprising the panel of IMTFE judges were Cramer, Delfin Jaranilla of the Philippines, Henri Bernard of France, Mei Ju-ao of China, Edward Stuart McDougall of Canada, Erima Harvey Northcroft of New Zealand, Radha Binod Pal of British India, William Donald Patrick of Great Britain, Bernard Victor Röling of the Netherlands, William Flood Webb of Australia, and Ivan Michyevich Zaryanov of the Soviet Union. Most were members of their respective justice systems, and Cramer, Jaranilla, Mei, and Zaryanov were military officers. Webb was appointed tribunal president.

Document Analysis

This excerpt from the IMTFE judgment begins with the background of the tribunal. The Japanese had been repeatedly warned that their aggression would be punished, and three specific incidents are mentioned. The tribunal was set up to “implement the Cairo Declaration of the 1st of December 1943, the Declaration of Potsdam of the 26th of July, 1945, the Instrument of Surrender of the 2nd of September, 1945, and the Moscow Conference of the 26th of December 1945.” These are all crucial dates in the Allies' handling of Japan, and each text is reproduced in part within the introduction to this document. The Cairo Declaration informed Japan that its aggression would be punished. The Declaration of Potsdam warned that Japan would be held accountable for “war crimes.” The Japanese surrender included language that allowed the Allies to carry out the Potsdam Declaration and instructed the Japanese to give General MacArthur the authority to carry out whatever he deemed necessary “to effectuate this surrender.” The Moscow Conference gave MacArthur the authority to occupy Japan in order to ensure its compliance. This section of the report details the process of appointing judges and the charges brought against the defendants—“fifty-five counts charging twenty-eight accused with Crimes against Peace, Conventional War Crimes, and Crimes against Humanity during the period from the 1st of January, 1928, to the 2nd of September, 1945.” A summary of all the charges is listed, with the crimes against peace listed first, and by the country or group of countries against which Japan waged war. The charges range from the very general, as in count 1, which charged the accused with waging a war of aggression, to the very specific, as in count 51, which “charges certain accused with the murder of members of the armed forces of Mongolia and the Soviet Union in the Khalkin-Gol River area in 1939.”

Significant detail is presented pertaining to the difficulties in conducting the trials in a timely manner. Not only were there significant language barriers, they went in every direction, making communication between judges, prosecutors, defendants and their counsel very difficult. Perhaps anticipating procedural challenges, steps were taken to ensure that a timely trial could be held while allowing appropriate evidence and testimony to be presented. The report concedes that the “length of the present trial requires some explanation and comment” and goes on to explain that there were not only language delays, but also that the amount of evidence, much of it deemed irrelevant, presented was overwhelming. In addition, the trials covered a period of seventeen years and needed to take into account Japanese military and political history. Finally, a vigorous defense was mounted, and “every foot of the way was fought.” The admissibility of evidence, particularly a pair of key diaries/memoirs, is hotly debated, with the report going so far as to accuse lawyers of defending the indefensible. The background given in this section of the report is useful to understand the length of the trial and the complexities experienced by the participants.

Glossary

covet: want or desire wrongfully, inordinately, or without due regard for the rights of others

effectuate: to bring about; effect

extempore: spoken or done without preparation

indictment: a formal accusation initiating a criminal case

probative: serving or designed for testing or trial; affording proof or evidence

prolix: extended to great, unnecessary, or tedious length; long and wordy

promulgated: to make known by open declaration; proclaim formally

rebuttal: an act of rebutting or refuting by evidence or argument

tender: to present formally for acceptance

viva voce: by word of mouth; orally

Bibliography and Additional Reading

Madoka Futamura. War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy. New York: Routledge, 2008. Digital file.

Maga, Timothy P. Judgment at Tokyo: The Japanese War Crimes Trials. Lexington: UP of Kentucky, 2001. Print.

The Tokyo War Crimes Trial: A Digital Exhibition.” University of Virginia School of Law, n.d. Web. 12 Jan. 2015.