Following the Cairo Declaration of December 1, 1943, in which the United States, Great Britain, and China announced their determination "to restrain and punish the aggression of Japan" in the Far East theater, the Allies pronounced their policy regarding Japanese war crimes in the Potsdam Declaration on July 26, 1945.
"We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation," read the declaration, "but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners."142
About two weeks after the surrender, the Japanese government agreed that the provisions of the Potsdam Declaration would be carried out, and on January 19, 1946, General Douglas MacArthur, Supreme Commander for the Allied Powers (SCAP), issued a special proclamation that announced the establishment of the International Military Tribunal for the Far East (IMTFE).
Eleven judges, nine from the nations that signed the Instrument of Surrender, one from India and one from the Commonwealth of the Philippines, were eventually appointed by the SCAP.
Following months of preparation, the IMTFE, also known as the Tokyo War Crimes Trial, first convened on April 29, 1946, and four days later the prosecution opened its case, charging the defendants with "Conventional War Crimes," "Crimes against Peace," and "Crimes against Humanity." The trial continued for more than two and a half years, hearing testimony from 419 witnesses, and admitting 4,336 exhibits of evidence including depositions and affidavits from 779 other individuals.143
The prosecution began the Nanking phase of its case in July 1946 and Dr. Robert Wilson, a surgeon and a member of the International Committee for the Nanking Safety Zone, took the witness stand first.
It was at this moment that the majority of Japanese populace first heard about the inconceivable scale and dimension of the Rape of Nanking. "The horrible acts of the Japanese Army have now been revealed to the people for the first time," wrote the Asahi newspaper on July 26.144
"I, myself, observed a whole series of shootings of individual civilians without any provocation or apparent reason whatsoever," testified another witness, Miner Searle Bates, a missionary and a professor of history at the University of Nanking. "The bodies of civilians lay on the streets and alleys in the vicinity of my own house for many days after the Japanese entry."
Bates told the court how the Japanese soldiers systematically and arbitrarily gathered and executed Chinese prisoners of war, how extensively they raped women, including the five different occasions that he had seen with his own eyes, and how painstakingly they looted houses, shops and other buildings.145
Among other members of the International Committee for the Nanking Safety Zone, John Magee also testified in court and George A. Fitch, Lewis Smythe and James McCallum filed affidavits with their diaries and letters.
The collection of their official documents of protest to the Japanese embassy, Documents of the Nanking Safety Zone edited by Hsü Shushi, was also submitted. In the end, a total of 11 people including 5 Chinese survivors took the witness stand and 21 people filed affidavits.146
With the mounting evidence of the Nanking Atrocities presented against him, the commander-in-chief of the China Central Area Army (CCAA), Matsui Iwane, wobbled between denying the mass-scale atrocities and evading his responsibility for what had happened. Eventually he ended up making numerous conflicting statements.
In the interrogation in Sugamo prison preceding the trial Matsui admitted that he heard about the many outrages committed by his troops from Japanese diplomats when he entered Nanking on December 17, 1937.
In court, to the contrary, he told the judges that he was not "officially" briefed at the consulate about the evildoings, presumably to avoid admitting any contact with the consulate officials such as Second Secretary (later Acting Consul-General) Fukui Kiyoshi and Attaché Fukuda Tokuyasu who received and dealt with the protests filed by the International Committee.
In the same interrogation session before the trail Matsui said one officer and three low-ranking soldiers were court-martialed because of their misbehavior in Nanking and the officer was sentenced to death.
In his affidavit he said he ordered his corps to investigate the atrocities and punish the evildoers.
In court, however, Matsui said that he did not have jurisdiction over the soldiers' misconduct since he was not in the position of supervising military discipline and morals. Throughout his testimony, Matsui continued to utter lame excuses.147
There are some episodes that clearly indicate the supreme commander of the CCAA knew exactly what was going on in Nanjing and could not effectively stop his troops going on the rampage.
According to his diary, one day after he made the ceremonial triumphal entry into the city on December 17, 1937, he instructed the chiefs of staff from each division to tighten military discipline and try to eradicate the sense of disdain for Chinese people among their soldiers.148
On February 7, 1938, Matsui delivered a speech at a memorial service for the Japanese officers and men of the Shanghai Expeditionary Force who got killed in action. In front of the high-ranking officers, Domei News Agency reported, he emphasized the necessity to "put an end to various reports affecting the prestige of the Japanese troops."149
The entry for the same day in his diary read, "I could only feel sadness and responsibility today, which has been overwhelmingly piercing my heart. This is caused by the Army's misbehaviors after the fall of Nanking and failure to proceed with the autonomous government and other political plans."150
The mass executions of Chinese prisoners of war, however, were not probably a big concern in Matsui's mind, compared with other atrocities. In fact, the deputy chief of staff under Matsui, fellow defendant Muto Akira, told the International Prosecution Section about Japan's policy on Chinese POWs when interrogated in Sugamo prison before the IMTFE convened. A part of the proceedings read:
IPS: .... Of course, you took prisoners from the Chinese armies?
In court, Muto straightforwardly admitted that what the prosecutors dubbed the Rape of Nanking took place. There were many other Japanese witnesses who acknowledged that there were excesses of Japanese troops in Nanking, though their perceptions as to the scale of the Rape of Nanking varied.
Among the most candid witnesses was Ishii Itaro, the East Asia Bureau chief of the Foreign Ministry. He testified that he was briefed about the rape, arson, looting, and murders from Foreign Ministry offices in Nanjing and Shanghai. In his autobiography, Ishii wrote that he and Foreign Minister Hirota Koki warned the Army to take action many times.
"This is the truth about what was called the 'Holy War,' and the 'Emperor's Military.' From the beginning I dubbed the incidents the 'Nanking Atrocities'.... It left an eternally indelible stain on our history," lamented Ishii in his book.152
In the end the Tribunal connected only two defendants to the Rape of Nanking.
Matsui was convicted of count 55, which charged him with being one of the senior officers who "deliberately and recklessly disregarded their legal duty [by virtue of their respective offices] to take adequate steps to secure the observance [of the Laws and Customs of War] and prevent breaches thereof, and thereby violated the laws of war."
Hirota Koki, who had been the Foreign Minister when Japan conquered Nanjing, was convicted of participating in "the formulation or execution of a common plan or conspiracy" (count 1), waging "a war of aggression and a war in violation of international laws, treaties, agreements and assurances against the Republic of China" (count 27) and count 55.153
On November 12, 1948, on the basis of a simple majority of the eleven judges, Matsui and Hirota, with five other convicted Class-A war criminals, were sentenced to death by hanging. Eighteen others received lesser sentences. The death sentence imposed on Hirota, who was apparently sent to the gallows on the basis of a bare six votes, shocked the general public and prompted a petition on his behalf, which soon gathered over 300,000 signatures, but to no avail.154
Matsui's Buddhist confessor Hanayama wrote of the conversation he had with Matsui on November 29, about three weeks before his hanging. "I am ashamed of the Nanking Incident," said Matsui according to Hanayama.
"After the memorial service, I gathered up everybody and warned them with tears of anger. Both Prince Asaka and Lieutenant General Yanagawa were there. [I told them] we came all the way to stand on the majesty of the Emperor, but the dignity [of the Imperial Army] was lost at a stroke through the brutal acts of the soldiers. But then everyone laughed. To my displeasure, a certain division commander even uttered, 'of course.'"155
Though how much he wished to atone for what had happened is impossible to speculate, he had probably been nurturing some sense of remorse.
After he retired, Matsui built a syncretic sanctuary of a Buddhist temple and a Shinto shrine to deify the spirits of Japanese and Chinese soldiers who died in the China theater and erected the statue of Kannon, the Buddhist Goddess of Mercy, in 1940.156 He was said to have visited the place almost every day until he was imprisoned.
From its very beginning, the legitimacy of the IMTFE was questioned by many.
All the eleven justices were from the victor nations. Except for the Indian justice, Radhabinod Pal, no judges had much experience in international law.
Besides, had the trial been in a normal court, some of them would probably have been disqualified.
The Chinese justice, Mei Ju-ao, had no experience as a judge in China or elsewhere.
The U. S. S. R. representative, Major General I. M. Zaryanov, did not speak either Japanese or English, the two official languages of the tribunal.
The Philippine justice, Delfin Jaranilla, was a Bataan Death March survivor.
The Australian justice and the designated president of the tribunal, William Webb, had been involved in an investigation of Japanese atrocities in New Guinea.157
Many argued the Tokyo Charter was ex post facto, or retroactive, legislation. The burden of criminality that made a failure to prevent war crimes also a crime, and the individuals' criminality for acts of states, had never been indictable in international law before the Axis powers' defeat.
Immunity was granted for Emperor Hirohito and his family by the United States. The U. S., it was revealed years later, also decided not to bring certain members of the Japanese Army to court, namely the officers and scientific researchers of Unit 731 who experimented with bacteriological weapons on human guinea pigs in China, in exchange for the research data.158
On the day the judgment was read, five of the eleven justices released separate opinions outside the court.
In his concurring opinion Justice Webb (Australia) took issue with Emperor Hirohito's legal status.
"The suggestion that the Emperor was bound to act on advice is contrary to the evidence," wrote Webb.
While refraining from personal indictment of Hirohito, Webb indicated that Hirohito bore responsibility as a Constitutional Monarch who accepted "ministerial and other advice for war."159
Justice Jaranilla (Philippines) disagreed with the penalties imposed by the tribunal. "They are, in my judgment, too lenient," wrote the justice, "not exemplary and deterrent, and not commensurate with the gravity of the offence or offences committed."160
Justice Henri Bernard (France) pointed out the tribunal's flawed course of action such as the absence of Hirohito and the lack of sufficient deliberations by the judges. "A verdict reached by a Tribunal after a defective procedure cannot be a valid one," concluded Bernard.161
"It is well-nigh impossible to define the concept of initiating or waging a war of aggression both accurately and comprehensively," wrote Justice Bernard V. A. Röling (Netherlands) in his dissenting opinion.
Pointing out the difficulties and limitations in holding individuals responsible for an act of state, and making omission of responsibility a crime, Röling called for the acquittal of several defendants including Hirota.162
Justice Radhabinod Pal (India) produced a 1,235-page judgment in which he dismissed the legitimacy of the IMTFE as mere victor's justice.
"I would hold that each and every one of the accused must be found not guilty of each and every one of the charges in the indictment and should be acquitted on all those charges," concluded Pal.163
It must be noted, however, that Pal did not question whether the Rape of Nanking took place or not.
While taking into account the influence of wartime propaganda, exaggerations and distortions of facts in the evidence, and "over-zealous" and "hostile" witnesses, Pal concluded, "The evidence is still overwhelming that atrocities were perpetrated by the members of the Japanese armed forces against the civilian population of some of the territories occupied by them as also against the prisoners of war."164
No matter how vulnerable the legitimacy of the IMTFE was, Japan accepted the judgment of the tribunal and of the other war crimes trials by the Allied nations, including the Nanking War Crimes Tribunal, at the San Francisco Peace Conference in September 1951.
By 1958, with the consent of a majority of the governments represented on the Tribunal, Japan paroled and released every remaining Class-A war criminals.165
The Yasukuni Shrine in Tokyo, a Shinto shrine established in 1869 for people to worship "the divine spirits of those who sacrificed themselves for their country,"166 now enshrines some 2.5 million souls including those convicted for war crimes.
The decision to embrace even the Class-A war criminals finally came in 1978. Since then Japanese government officials' visits to the Shrine have occasionally aroused protests in China and other Asian countries.167
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