Essay On Tokyo Trials

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Introduction

At the end of World War II, the eleven countries which formed the Allied Powers (Australia, Canada, China, Netherlands, New Zealand, Philippines, Soviet Union, the United Kingdom, France, India and the United States) indicted and prosecuted military, political and diplomatic leaders on account of crimes against humanity and War crimes that were carried out in Southeast Asia between the years 1928-1945[ A C Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials ( Morrow, New York 1987)76]. The trials were coined Tokyo trials since the proceedings took place in the city. The trials stood alongside Nuremberg Trials since they contributed to International law. This trial lasted longer than the former Nuremberg Trials. The idea of prosecuting the war leaders on crimes against humanity was generated late after the war

[ A C Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials ( Morrow, New York 1987)43].
The initial focus of the Allies was based on the atrocities that was done against civilians. The challenge of crimes against peace concerned the criminal liability for the breach of the forces used by the States

[ T MacCormarck and J S Gerry, The Law of War Crimes: National and International Approaches (Kluwer Law International, The Hague 1997) 97].
The second difficulty involved reaching the top most Axis leaders. The legal principle that was used in this trial was conspiracy. The jurists who were acting on the case argued that conspiracy will be imputable to all other members. Many quarters argue that the Tokyo trial was unfair. Just like the Nuremberg trial, the tribunal indicted the Axis of power that took part in the crimes. Japan was barred from raising issues on some actions of members of Allied Power, for example the atomic bombing of Hiroshima and Nagasaki. Another action committed by one of the Allied powers was violation of neutrality that was committed by the Soviet Union in the year 1941

[ J M Welch, The Tokyo Trial: A Bibliographic Guide to English-Language Sources ( Greenwood Press, Westport, Conn 2002) 67].

However, law find universal application and the war lords had to be prosecuted. This paper is an in-depth analysis of Tokyo Trials, its intentions and legal implications.
The post-war legal proceedings was supported by superpowers at that time. The essential

[ A Nisuke, Japan and International Law: Past, Present and Future : International Symposium to Mark the Centennial of the Japanese Association of International Law. ( Kluwer Law International, The Hague 1999) 45]

character projected by United States and the Soviet is self-righteous[ A C Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials ( Morrow, New York 1987) 65

While preaching against wars of aggression, the two nations had developed arsenals of nuclear weapon. The extent of Tokyo Trials was consciousness that was shared by the international community. Tokyo trials did not represent the norm consciousness of ordinary people. The establishment of International Tribunal for the Far East was formed by the commander of Allied Powers in absence of neutral countries involved in its formulation.

Tokyo trial happened during the final phase of international law[ A Nisuke, Japan and International Law: Past, Present and Future : International Symposium to Mark the Centennial of the Japanese Association of International Law. ( Kluwer Law International, The Hague 1999) 56]. The trial began on May 3, 1946 on which the indictment was read. The peoples of Japan were brainwashed with the idea that Japan was dominated with ‘militaristic clique’. These policies were reasons behind world trouble and damage of the interests of people who loved and maintained peace. There was alleged racial superiority of the Japanese to the people of Asia. The parliamentary institutions that existed in Japan were used as avenues of propagating aggression similar to those used by Hitler and the Nazi government. According to the trials, the financial and economic resources of Japan were mobilized for the same purpose; propagating war crimes.

A conspiracy was used in the tribunal, which is similar to the one used against the aggressive nations namely Nazi Germany and Fascist Italy. The main constituents of the subject was to highlight the exploitation and domination used by the aggressive States to the rest of the world. In the promotion of the scheme, the defendants took advantage of their position, prestige and influence to wage war against other countries.

The background used by the Tokyo Trial was different from that of Nuremberg Trial. The three Allies on a Conference in Cairo spelled out the purpose of the trial was to punish the aggression that was used by the Japanese. The three allies included Britain, China and the US. The three allies agreed that justice was to be meted to all criminals who imposed cruelties even to their war crime prisoners[ Y Dinstein, The Defence of 'obedience to Superior Orders' in International Law. (OUP Oxford, Oxford 2012) 78]. The Tokyo trial was based on the concepts that were initiated in the Nuremberg Trial which included; Crime against Peace, War Crimes and Aggressive War and Crimes Against Humanity. Each member of the Allied Power contributed to the Tribunal by having a presiding judge each. The US provided the funds for the trial and thus, it took full charge of prosecution. The indictment equated the political structure of Japan to totalitarian regime such as that of Nazi Germany[ T MacCormarck and J S Gerry, The Law of War Crimes: National and International Approaches (Kluwer Law International, The Hague 1997) 90]. A report that was compiled by the US Department of State described the World War II as a conspiracy engineered by three nations; Japan, Germany and Italy. The three totalitarian regimes sought to rule all over the world. The Allied Nations defended this freedom and democracy of the people. During the Tokyo Trials, Cold Wars was palpable due to incompatibility that existed between the US, Great Britain and the USSR.

During the early days of the trials, the three countries were intimately bound with a common aim of bringing their arch-rivals down. The description of Japan in the term militaristic clique was to equate them with the Nazi’s[ Y Dinstein, The Defence of 'obedience to Superior Orders' in International Law. (OUP Oxford, Oxford 2012) 69]. This is from the fact that Japan had formed an alliance with Germany and Italy. The objective to call the country by the term was convincingly objective. According to the tribunal, the Allies had irresponsible militarism and deceived their people to embark on the conquest. In the interpretation, there was a desire to create a rift between the militarist and the citizenry.

Before the trials commenced, the defence attorney Kiyose Ichiro argued that judges were not qualified to serve in the tribunal. The recusal motion by the attorney was, however, rejected on the basis that MacArthur’s charter would preside over the legal principles in the tribunal. There was a debate that ensued, which lasted for three days consecutively on the same matter. On the seventh day after the proceedings began, the presiding judge rejected the motion. While arguments were present, the defence attorney Ben Bruce released a statement that would later develop explosively[ P S Dull and M T Umemura, The Tokyo Trials. (University of Michigan Press, Ann Arbor
1957) 89

The gist eminent in his speech argued that the countries which were responsible for the bombing in Hiroshima and Nagasaki were not qualified to judge in the tribunal.
The punishment of the persons who perpetrated the wars formed the scope of the Tokyo Trials. There was 36 counts of crime in Class A laid against those of 28 Class A accused the civil and military leaders at the height of Japan’s expansionism. There were two charges included in the 36 counts; conspiracy to commit aggression and aggression against self. These charges related to the historical events that took place during that time[ M Fatamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremburg Legacy (Routledge, London 2008) 56

For instance Count 1 outlined the broad conspiracy that existed in the 18 years whose aim was to secure political, economic and naval domination of East Asia, the Pacific and the Indian Oceans.

The prosecution that was used in Tokyo trials was divided into two phases. In the first phase of the prosecution, there was concentration in establishing the validity of crime in the precepts of international law and its legitimacy of protecting international security. For definition purposes, they drew from the US authority. The common argument was that the conspiracy emanated from an agreement. This agreement could be established via a concert of action with a common purpose. Any Japanese leader who joined the agreement was guilty even though there was no participation in unlawful act.

On the summation, the prosecution used Nuremberg Conspiracy on crimes and rejected the idea of grand conspiracy that was used in Europe. The IMTFE charter was issued in line with Special Proclamation authored by General MacArthur in 19th of January 1949. This was in accordance to orders that were sent to him by the Joint Chiefs of Staff[ T P Maga, Judgment at Tokyo: The Japanese War Crimes Trials (University Press of Kentucky, Lexington, Ky 2001) 79
Special Proclamation by MacArthur said that international Military Tribunal for the Far East approved its constitution and functions and the steps that led to its establishment was without prejudice. He took the action since the three Allies entrusted him with the power[ M Fatamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremburg Legacy (Routledge, London 2008) 91

This charter, as earlier stated, was greatly influenced by the Nuremberg guideline, but redrafted to comply with direction given by American Joint Chiefs of Staff to resemble the prevailing conditions in Japan[ T P Maga, Judgment at Tokyo: The Japanese War Crimes Trials (University Press of Kentucky, Lexington, Ky 2001) 86
The Charter bestowed the commander with the power of selecting the members of the tribunal. It was also within his jurisdiction to appoint the president of the tribunal. The indictment was the work of British prosecutor Arthur Comyns-Carr that was lodged in the Court before the hearing on April 29. Each contingent that arrived had its own agenda and priorities.

The legitimacy that characterized Tokyo Trials depended upon the number and states that took part but more importantly on the consent of Japan as a state to present its jurisdiction. This made it relinquish its sovereignty in the process[ T MacCormarck and J S Gerry, The Law of War Crimes: National and International Approaches (Kluwer Law International, The Hague 1997) 45

The same legality was applied in Nuremberg trials. The only difference that existed is that Japan did not surrender unconditionally. During the trial, the sovereignty of Japan was not extinguished finally at the end of the hostilities. The Tokyo Trial indictment mimicked elements that were present in Nuremberg trials. The ideas were the same; elements of conspiracy, individual role and responsibility on the conventional war crimes and crimes against humanity. The conceptual framework used for both trials was the same.
The breadth of the conspiracy was in fact in every facet of Japan’s domestic and foreign affairs a period that lasted approximately two decades. The twenty eight persons who were convicted by the Tokyo Trial were selected following deliberations made International Prosecution Committee[ T MacCormarck and J S Gerry, The Law of War Crimes: National and International Approaches (Kluwer Law International, The Hague 1997) 76

There was pre-trial briefings prepared after investigation and interviews conducted on the individual suspects. Most of the persons who had been charged with crime had been held up in Sugamo Prison. The defendants were largely key and crucial established figures who had risen to prominent leadership in Japan and had won adoration from the citizens due to the leadership competence. The defendants had a good track record which showed them to be conscious and ready to uphold the integrity of Japan.
Like the Nuremberg Trial, the Tokyo trial refuted evidence that was favourable to the defence of the Allied powers[ J M Welch, The Tokyo Trial: A Bibliographic Guide to English-Language Sources ( Greenwood Press, Westport, Conn 2002) 78

The court simply stood the ground and confined the jurisdiction to the conduct that entailed the Japanese side. The powers of the court were largely checked by the charter and the rules that defined Tokyo Trial. There was situation in which the tribunal could over step its mandate. The judgement comprised of 1781 page tribunal document. The presiding judge at that time, Sir William Webb required a sum total of nine days to read the verdict to the court. Before the judgement was given, two of the defendants; Admiral Nagano Osami and Matsuoka Yosuke died due to natural causes as a result of poor conditions in Sugamo Prison. The rest of the defendants at the Tokyo crime were all convicted, each of them were found to have at least two counts of charges. Organizations were not convicted by the Tribunal. Both the verdicts and the sentences were confirmed and accepted by MacArthur.

Conclusion

The mass killings orchestrated by Japan and allies were put in the public domain and in face of the whole. A common factor that existed in the tribunal is the twin principle of criminal responsibility and universal jurisdiction in prosecution and sentencing of war criminals[ A Nisuke, Japan and International Law: Past, Present and Future : International Symposium to Mark the Centennial of the Japanese Association of International Law. ( Kluwer Law International, The Hague 1999) 56

Another crucial factor that emanated is that international law surpassed the national law. The verdict made by the tribunal was not binding to the domestic practices of the state. IMTFE is credited for the crucial importance in working in the favour of Japanese people and the extent to which the verdict was endorsed by the San Francisco Peace Treaty. What can be learnt from the Tokyo Trial is that that any crime is punishable by law no matter how long it takes.

Bibliography

A Nisuke, Japan and International Law: Past, Present and Future : International Symposium to Mark the Centennial of the Japanese Association of International Law. ( Kluwer Law International, The Hague 1999).
A C Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials ( Morrow, New York 1987)
Y Dinstein, The Defence of 'obedience to Superior Orders' in International Law. (OUP Oxford, Oxford 2012)
P S Dull and M T Umemura, The Tokyo Trials. (University of Michigan Press, Ann Arbor 1957)
M Fatamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremburg Legacy (Routledge, London 2008)
T P Maga, Judgment at Tokyo: The Japanese War Crimes Trials (University Press of Kentucky, Lexington, Ky 2001)
T P Maga, Judgment at Tokyo: The Japanese War Crimes Trials (University Press of Kentucky, Lexington, Ky 2001)
T MacCormarck and J S Gerry, The Law of War Crimes: National and International Approaches (Kluwer Law International, The Hague 1997)
Y Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War Ii (1st, Harvard University Asia Center, Cambridge MA 2008)
J M Welch, The Tokyo Trial: A Bibliographic Guide to English-Language Sources ( Greenwood Press, Westport, Conn 2002)