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REVIEi: of t he RECORD OF TRIAL

by a

1.ITLIT ARY OOll?AISSI ON

of

SA":h.DA SHIGERU , LI !iJJT:!:NANT GENEl1Al , Difi'ERIAL JAP,\NESE ARllY, ct D.1 .

I NDEX

1 . OFFENSES • • • • • • • • • • • • • .:i . Chi'..r gcs end Spcci.fi.cnti.on:; :

Lt . Gencr .::.l s~ui.:lda , Shi g ·i11 • • ,

C.:iptai.n 01':.:>.di'.. , lzyuh<.; i. • • • • • Lt . ·.:nko, Y!..l::;ci • • • • • • •• Captain T~tsut~ , Sotoji.ro •••

b . Convening Auti1ori t y • • • • • • • c . Plucc of 'i' rial • • • • • • • • • <l . Date of Tr i<!l • • • • •• c . Pleas by cl:!. D-.f cadant s • • • • • f . Con clus i. or.s • • • . • . . . . .

Findings • • • . . • • • • . . . S.:nt i... nc~s • • • • . . . .

1- 2 2- 3 3- 4 4- 5

5 5 5 5

5- 6 7 8

l- 8

2. PR.ELD !JN AA.Y REl.'..UUCS 3. EVIDEl'l CE • • • . . 4. DISCUSSION • . . •

Ch~rgcs

• • • . . . • . • •

• • • .

• . •

. . . . . . • . . . 8- 9 • • • • • • • • 9-18

. . . . . . . . . . 18-36 n. . • • . . . • . b. Offenses :

(1) Unln wful Trial . • 20- .22 (2) Unla•:1ful Troatm.:nt 22- 24

c . Findings • • • • • • . • • . ct . ~fcnsc of Super ior Orde r s • c . I :idi vi.dual 0..:ilt of t he. Accused

Sm·13da • • . . . . . • • 27 O!mda • . . • . . . 28 ','Tako • . • • . • . . 29 T.::.tsut;i. • • . • • • • 29- 32

f. Scntcnc0s • •• , , . . . g . I nterlocutor y Q.lcstion3 • • •

5. CIE}~CY • • • • • • • 6. OPiiHOt! • • • • • • • •

. . 7. .REC01'9.!ENDATim! • • • • • • • • • , B. ACTICiJ • • • • . • . . • • •

• . .

• • . . . • • . •

. . . • • •

10-.w 20-24

24- 25 25-26 27- 32

32 33-36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36 36 36 37

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~Ui\RTERS NANKING H.w>QUAR'ffitS COMM.\ND Off icc of th~ Staff Judge Advocate

APO 909 August 1946

SUBJECT : Review of thl! Record of '1'r ial by a Hilit;iry Commis­sion of Saw:ida Shigeru, Lieutenant G.::ne r al, Imperial Japanese Ar my, et al .

TO Conv:ianding G·.:neral, Nanking Headquart e r s Command, APO 909 .

1. 3 . OFF.El':SES :

(1) Licutcn::mt Gener a l S/\!l.iill!., SHIGERU .

Char ge :

Tha t on or about tho month of Augus t 1942, Lieu­t enant Gener al, then ~~njor Gene r al SHI GIBU SA' .'ADA, Commanding Gener al of the J apr\ncsc Imperi."'l lJth Expeditionary Army i n China, while a st~te of war existed between J apan and the Unit ed St at .:: s of !imerica and its . .;llics did , a t or near Shanghai, China knowingly, unlmvfully rind wilfully and by his official net s cause Licutcn~:mt Dean E. rlallmark, Lieutenant l·iilliam G. Farrow, Ser ge.'.ln t Hnrold .. . Spatz, Li cuten;mt Robert L. Hite , Lieutenant Geor ge Barr, Lieutenant Chase J . Nielsen, Lieutenant Rober t J. l.~ed er and Cor por al Jacob De Shazcr , United St at es Army Personnel and Pr isoners of .'ar, t o be dcni.::d the s t atus of Prisoner s of · ·ar and to be tried :md sentcnc~d by a Japanese t.!ilitar y Tribun;;l in viol~tion of t.h1.. l aws and cus t oms of war.

Sp 1 : Tha t on or about the month of August 1942, at Shanghai, China SHIGERU SA1W .. DA as Commanding Gener::..l of th<:: Japanese: Imperial 13th Expeditionary 1 rmy i n Chin:i did knowingly and wilfully constitute :ind appoint a Japanese l.!ili­tary Tribunal and did dir1::ct tho said Japanese l.!ili t nry Tri­bunal appointed ":>y him as af or0s aid t o try by court- martiol Li~utenc1nt DuD.n C: . Hallmark, Lieutenant ./illi.:im G. Farrow, Sergeant Hur old .... Spatz, Lieutenant Robert L. Hit0 , Lieuten­ant G<.:org..: Barr, Licut•m c'.lnt Chase J. Nio l s un, Lieutenant Robert J. aed tJr and Corporal J acob De Shaz..:r , United St nt es Army Personnel on f <:.lsc :md fraudul~nt char ges .

Sp 2 : Tha t on or about the: month of August 1942, and the month of Oc t ober 1942, a J ap:inese Military Tribunal constituted r.nd appointed by SiUGERU SiNAD'1. , in his official capacity :is Commanding Gcncr -.1 of tho J apanuse Imperial l Jth Expeditionary /,r my in China , did a t Shanghai , ChinA try Lieu­t enant 0 1.. an t: . Hnllmark, Lieutcnnnt. ' /illinrn G. Farrow, Ser geant

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Harold A. Spatz, Lieutenant Robert L. Hite , Lieut enant Geor ge Bar r, Lieutenant Chase J . Nielsen, Lieutenant Robert J . Meder and Corporal Jacob De Shazer , United States Army Personnel and Prisoners of War, upon f al se and f r audulent evidence in the said Military Tribunal appoin ted as aforesaid, and did sentence the above named United States Military Personnel to death all under the author i t y of t he said SHIGERU SA\'JADA in his official capacity as Commanding General of the Japanese Imper ial 13th Expeditionary Army in China.

Sp 3: That between the months of August 1942 and October 1942, SHIGERU SAHADA, as Commanding General of the Japanese Imparial 13th Expeditionary Army in China , did deny t he status of prisoner of war t o Lieutenant Dean E. Hallmark , United States Llilitary Per sonnel and then a prisoner of war, and did knowingl y and willfully authorize the said Lieutenant Dean E. Hallmark to be imprisoned as a war criminal, t o be denied proper food, clothing, medical care and shel ter, and did author­ize and allow cr uel and brutal atrocities and other offenses to be cor.imitted against the said Lieutenant Dean E. HalL-:lark.

Sp 4: That between t he months of Au;;ust 1942 and October 1942, SHIGERU SA\'/ADA as Commanding General of t he Japan­ese Imperial 13th Expeditionary Army in China, did have t he power to commute, remit and r evoke the sentence of the said Japanese Military Tribunal imposed upon Lieut enant Dean E. Hallmark, Lieutenant William G. Farrow , Ser geant Harold A. Spatz , Lieu­t enant Robert L. Hite, Li eutenant George Barr, Lieut enant Chase J . Nielsen, Lieutenant Robert J. Metle r and Corporal Jacob De Shazer, United States Army Personnel and Prisoners of War, and did knowingl y and willfully fail to take such act ion, causing the unlawful death of Lieut~nant Dean E. Hallmark, Lieutenant William G. Far ron, Serbeant Har old A. Spatz and Lieutenant Robert J . Meder , and unl awfully causine Lieutenant Robert L. Hite, Lieutenant George Ba.L"r, Lieutenant Chase J. Nielsen and Corporal Jacob De Sha~er to be s entenced to life imprisonment as war cri.minnls .

Sp 5: That between the months of Au_:ust 1942 and October 1942, SIUGERU SA\/ADA as Co1M1andinc General of the Jap­anese Imperial 13th Expeditionary Army in Chinn did cause Lieu­tenant Dean E. Hallmark, Lieut enant Willia'll G. Farron, 3ergeant Harold A. Spatz , Lieutenant Robert L. Hite , Lieutenant George Barr, Lieutenant Chase J . Niel son, Lieutenant Robert J . J.ieder and Corporal Jacob De Shazer, United States Arll\Y Personnel, to be denied t he honor abl e s t ntus of Prisoners of War and wrong­fully caused t hem nnd each of t.hc.n to be truntcd ns wt>.r c r iminals .

Sp 6: (Formerly Specif ication 7, which was dis­miss~d by t he court. upon e motion mnde b~1 the prosecution).

(2) Capt ain OK ADA , RYUllEI .

Ch<lrge :

That or. or about th e: month of August 1942, Captain, then Second Lieutenant OKADA :lYUHEI , of the Japanese Imperial

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13th :::X.pediti onar y :.~· in China , ;ihilc n stc.t e of wa r existed be t ween Japan anci. the United St ates of America M<l its Allies, and as n member of a J a panese : :ilitnry Tribunal, did at Ki ang\'lan llilitary Prison, Shanghti , China knov.ri.ngl y , unlmrfully a nd vrill fully try , prosecute and c.dj udgc tha t Lioutcnc.nt Dean E. Hall­tlk1.r k, Lieutenc.nt \/illirun G. Farrow, Ser geo.nt Harold Z. Sp.:.tz, Lieutenant Robert L. Hite , Lieut ennnt George Barr , Lieutenant Chase J . Niel sen, Lieutennnt Robert J. ;.ieder and Corporal J a cob De Shnzer , United Sk.t es Army Pe rsonnel , the n Prisoners of ~Jar, to be put to death in viola tion of the l mts and customs of wnr .

Spccific~tion: That on or about tho month of Augus t 1942, Captain, then Second Lieutenant OKAD:\ RYUHEI) of the Japanese 13th Expeditiona r y Army in China, \lhile a stat e of \'tar exist ed betvieen J a!>D.n .:md the United States of America a nd i t s Allies , encl c s ~ member of a J o.pnneso !iilita r y Tribunal, did a t Kinngw<m !.iilita r y T'riGon , Shangh<!i , China l<nmringly, un­l a\/fully nnd rrillfully try, prosecute and, \ri.thout <>. f nir trial, adjudge cert ain chCTees .:\ga i:\s t Lieut enant Dc~n E. Hallmark, Licuteno.nt \!i l l i ruu. G. Farrow, Se r gennt Harold ,· .. Spat z , Lieu­t e no.nt Robert L. Hite , Lieutenant Geor ge Barr, Lieutenant Chase J . Niel sen, Lieutennnt Robert J . iletler and Corporal J~cob De Shnzer, United Stc.t es .. rn\y Personnel, then Prisoner s of · 1nr, nnd without nffor ding the nbove n.."..med Fr isonc r s of · 1~.r u f nir hearing or t r inl ond without ~ffording them t he right to counsel und the inte r pr e t ation of t he proceociings into English, l!lld without a ffording them un opportunity to def e nd themselv es, did on or about the cbove date, s entence t he uforcsui d Prisoners of ~!nr t o deL>.t h .

(3) Li eutenant " ;J'O, YUSEI.

Chcrge:

Thc t on or nbout the month of /1ugus t 1942, Lieu­t cn.:mt · .'AIW yus:::r, of t he J c.p.:mcse Impcrinl 13th j),(peditiona.ry Army in China , Hhil e a stct e of Hur Emisted bet ween J a ixm and the United st~tes of :.mericn o.nd its Allies , .:incl as n member of a Japanese ; :ilitnr y Tr ibunal, did nt Ki.mg-. inn ; iili tary Prison, Shanghni, Chinn kno\'ri.ngly, unlnr1fully nnd rrillfully try , pros­ecute and adjudge t hat Lieut enant Der.n E. H".ll!ill'.r k , Lieuteno.nt r illirm G. Farro\/ , Sor gccnt Ha r old , • Sp~.tz , Lieutenc.nt Robert L. Hite, Lieut enant Geor ge Bnrr , Lieutenc.nt Chcse J . Ni elsen, Lieuten~nt Robert J . ; !cdcr e nd Cor por a l Jccob De Shnzer, United St<!tes :.rmy Personnel, then Prisoners of ' 'er , to be put to dcnth in violntion of t he l o.Hs rn d cus tons of m'.r.

Spccificction: That on or nbout the month of August 1942, Lieutenant · .. •:J\O YUSEI , of the J npr.nese 13th

.. Expeditiona r y Ar my in Chino , \'thil o c st~.te of wl'.r exist0d between J npt'.n end tho United St~tcs of .\rnerico .:md its ,'JJ.i es, o.nd c s n member of n Jc panesc H.il itnr / Tribunal, did nt Ki :mgwan Uil­itn.ry Pr ison , Sh<mghni, Chine knowingly, unlawfully .:-.nd will­fully try, prose cute ~d without n f a i r trinl \'.djudgc certain ch~rges ~~ainst Lieutennnt Dor.n E. H~llmnrk , Lieuteno.nt \ iillinn

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G. Farrow, Ser gean t Harold A. Spatz, Li eutenant Robert L. Hi t o, Lieutenant George Barr, Lieutenant Chase J . Uiclsen , Li eutenant fi ob~rt J . Reder and Corporal J acob D~ Shazer, Unit ed St ates Arl?\Y Personnel, then Prisoners of ·i1ar , and without affording the above named Pr isoners of .:ar a fair hearing or trial and wit hout afford­ing them the right t o couns~l :ind the int er pl'(J t :it ion of the pro­c~edings int o English u.nd without affording t hc:i an opportunity to def end t hcmsclv.:.Js did on or about the above dot e , s enteuce the uforesnid Pr i soners of .'ar t o dent !-.•

(4) C~pt 1in TATSUTh , SOTOJIRO,

Charge :

Tha t on or 3bout thu 15th Oct ober 1942, TATSUTh SOTOJIRO, Capt ain in t he Japanese Imp~rial 13th Expeditionar~ J..rmy in Chin~, whi l e a stat u of war existed between Japan and the Unit ed Stat0s of America 'Uld its Allios did Rt ShJ.nghai, China knowingly, W1lawfully :~d wilfully command and execute an unlawful Orde r of a Japane se 11.ilitary Tribunr.l, and did there­by c~usc the deat h of Licuten\f\t Dean E. Hallmark , Lieutonru1t William G. Fnrrow, :md Scrge Mt Harold A. Spatz, United States Army Personnel who wer e lawfully ~nd rightfully Prisoners of War and thrlt th~ aforesai d TATSUT·, SOTO.TIRO than CommAnding Officer of the Kiangwnn Eilit nry Prison , Sh.mghni, Chin ~ and in his capacity as such did between tho period of 28 August 1942 and 17 J.pril 1943 a t Ki;ingwan ~ ~ilit::u-y Prison deny the status of Prison\Jrs of ?iar to Lieutenant Dea.n E. Hnllmark, Lieutenant ·;:illicl!n G. Fa rrow, Sergeant H::\rold rl . Spatz , Lieutenant Robert L. Hite , Lieuten .ant George Barr , Lieutenant Chri se J. Nielsen , Lieutenant Robert J . ~.:eder :md Corpornl Jacob De Shaz.::r , Uni t cd St ates hrmy Personnel :ind Pr isoners of :;ar, all in violation of the l aws .l!ld cus toms of wa r.

Sp 1: Th~t on or About the 15 October 1942, TATSUTA SOTOJIRO then Commandinb Officer of Kie.ngwnn Eilitary Prison, Sh~nghai , Chin~ did unlmvfully , knowingly .JJ'ld wilfully comrnnnd a dotail of Japanese :.ti.litnry Personnel which carried out tho execut ion of Lieutenant Dec.in 1:: . ii:ill.Jl\'1rk , LieutenMt !illirua G. Farrow "'1\d Sergeant Harold .n. . Spatz, United St2.t 0s hrmy Porsonn~l ·md did spccific::.J.ly order ".nd cor:im~nd certain J ap-nncsc soldi~rs to firo upon and kill thu sa id Lieutcmlnt Dean E. Hallinc:i rk, Licutcn~ t :/illi-.m G. Farrow end Sergeant H3.rold 11. . Spatz, united St <:i t-:s .U-1?\Y Personnel, :>..nd Prisoners of War.

Sp 2: J.hat from 28 1\ugust 1942, until 17 ~pril 1943, ~t Kiangwnn I.lilitar y Prison, Shunghc.i, Chin.:-! Tt.TSlITh SOTOJIRO t h"'n COI!¥11:!nding Officer of t he Ki:\ngwM llilitary Prison , Shc'l!lgh·,i , Chin:l ·me in his Cllp<\city ;is sue~, did deny tho statue of Prisoners of ' ;tlr to Lieuton·mt 0 0 111 E. Hr,llmark, Lieut cn?nt ·;nu 1111 G. Fnrrot••, Ser gc<'nt Har old h . Sp~tz, Lieu­t enant Robert L. Hit~ , Licuton 'Ul t George Borr, Lieutenant Ch~e J . Ni elsen , Li out en "nt Robert J. : !odor "lld Corpor;\l Jncob De Shazer, United St ?.t e s ,\rm_v Porsonnol ~nd Prisoners of ' !c>. r N1d did c~uso t hem to be tre at ed 1s · ·"r Crimin .'.!ls, b~· forcibly de t aining thu · bovc; n :?mcd Prisoner s of :·.r i n solitvy con-

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f incmcnt ,.,ithout adequate or proper quarters , or shelter, bed­ding, food, \'lat e!', sanitary facilities, cl othing, medical cara , and other essential facilities and supplies , and by deliber a t e f ailure und r efusal , without justificat i on, to provide such f acilities and supplies .

b. Convening Authori~y:

c . Pl aco of Trial:

Lieutenant Gener~ h· C. Hc..dcmeyer, U. s. Army, Commanding General, United States Forces , China Theater .

Courtroom i n the Viar d Road Jail, Shanghai , China.

d. Date ~ ~: Arraigruncnt, 27 February 1946; Interlocutory motions ,

27 February 1946; Trial, 18 Uarch 1946 to

e . Pl eas El ell def en­~ t o ~ Charges

15 Apr i l 1946 .

~ Specifications: 11NOT GUILTY" .

f . Conclusi ons , Findings ~ Scnt~nccs:

At t he close of the trial of the case the Commis­sion announced t o t he accus~d in open court its conclusions, findings .:i.m l s entences a s quot ed below:

11C0i~CLUSIONS

/\f t er ddibcr ation for t wo days , the Commission in r.rriving at its findin~s ~nd sentences , f rom t he evidence pr es1....11t c.:d , dra.\·1s tht: following cor.clusi ons :

The off uns~s of each of th~ accused r csultc..d l argel y frora obediunce t o t he laws and inst ructions of t heir Government and their hlilitary Superiors . They cxcrcisud r.o initiat i vu to any marked degr ee . The preponder ance of evidence shows buyond r eason­able doubt t hat other offi cer s , includin6 high govcrn­ment ul. and milit ary of ficials , wor e r~sponsiblc for

· the cncctmcnt of th0 Ex Post Fact o ' Enemy Airmen ' s Law ' and t he issuance of spvcial inst ructions ns to hon thesv /J?h .. r ic<in Prison1.Jrs wcrv t o b..: treated, tried, s entcncud and punishvd.

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The circumstan~es set forth above do not entirely ab sol v..; the accused from guilt . However, they do compel w1usually strong mitigating considerations, applicable to each accused in various degrees .

As for Shigeru Sawada: Although he \1as Command­ing General of the 13th Japanese Arrrw, he was absent at the front and had no knowledge of the trial and special instructions issued by his superiors until his return t o Shanghai three weeks after the results of the trial had been sent to the Imperial Headquarters in Tokyo over his 'Chop 1 • Although he did not make strong \'1ritten protests to Imperial Headquarters in Tokyo, he did nJ.:ike oral protest to his immediate su­perior, the Commanding General of the Japanese Im­per ial Expeditionary Forces in China to t he effect that in his opinion the sentences were too sever e. Although he was negligent in not personally investi­gating t he t r eatment being given the American prisoners , he was informed by his responsi ble staff that they wer e beini; given the treatment accorded Japanese Officer prisoners .

As for Yusei Wako : He , as Judee and l aw member of the Military Tribunal, had befo1·e him purported confessions of th e American fliers and other evidence obtained and furnished by the Military Police Head­quarters in Tokyo. Although he hel cl this position and was legally trained, he accepted the evidence without question and tried and adjudged the prisoners on this evidence which was false and fraudulent . How­ever , in voting the death penalty he \las obeying special instructions from his ~uperiors .

As for Ryuhei Okada: Although he sa t as a Judge at t he t r i al and enjoyed freedom of conscience in determining as to the guilt or i nnocence of the prisoners, he adjudged them guilty . This officer how­ever had no legal training and did register a protest to being a juclge on any court . In voting the death penalty, as in ifako ' s case, he was obeying specia l instrt~ctions f r or.i his superior s .

A3 for Sotojiro Tatsuta : Although he did act as .;xecutioner at th~ execution and was directly in charge of these prisoners at the Kiangwan Military Prison, he did this in his official capacity as warden . Alt hough he did not accorc. them the treat­ment provided for Prisoners of War , he was obeying special instructions from his superiors , and t here i s no evidence to show that he personally mistreated these prisoners or treated them in a manner other than that \'lhich was provided for in this instructions .

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"FINDINGS

The Commission in closed sess ion, a ll member s being present , upon s ecr et written ballot, tvio-thirds of the nembers at the time the vote was taken c oncur­ring in each finding, finds a s follows :

You, Shigeru Sawada, Of Specifica tion No. l: Quilty , except the

words ' knowingly and willfully • and •by court­mc.rtial ', of t he excepted words not suilty .

Of Specification No . 2: Guilty . Of Specification No. 3: Guilty, except the

\'lords ' knowingly and willfully ' and ' authorized and', of the excepted words not guilty.

Of Specification No . 4: Not Guilty. Of Specification No. 5: Guilty, except for

t he words •Licutennnt Dean E. Hall.mark', of the excepted v1ords not guilty .

Of the Charge: Guilty, exc0pt the words •knowingly ' and •and willfully •, of the excepted \'lords not guilty.

And you, Yusei Wako, Of the Specification: Guilty . Of the Charge : Guilty.

And you, Ryu.hei Okada, Of the Specification: Guilty . Of tho Charge : Guilty.

iJld you, Sotojiro Tatsuta, Of Specification No . 1: Guilty, except the

words 'Comma.nding Officer • and •commnr.d a detail of Japa'1cse Hill t ei.ry Per sonnel which carried out 1 , sub­stit uting ther efor, r espectively, t he \lords •warden ' and tho nords ' s er ve as executioner at' , and except the \lords 1and did specifi cally order ruid commnnd cert~ Japanese s oldiers to fir~ upon and kill the said LieutonMt Dean E. Hall.murk , Li e:uteno.nt \"lilliam G. F~.rron and Ser ge.'.!nt Harold f •• Spntz , United States Army personnel 1 , of the excepted words not guilty, of the substit uted viords guilty .

Of Specification No . 2: Guilty, axcept tho words ' from•, ' until' ~nd •commanding officer ', sub­stit uting ther efor , r espectivel y , t he words •bctwuen •, o.nd tnnd ' and •V/ardcn•, and e:xcupt the words •Lieu­t cno.nt Dean z. Hallsnark ', ' delibor nt e • and •with-out justific~tion 1 , of thu excepted words , not guilty, of t he substituted words guil ty.

Of the Ch~rge : Guilty, , cxcept t ho words 1com­m.'.ln<l D.nd 1 , and •coill/1'1£\nding officer •, substituting for t he lr..tter words 'i iar den' , and except the words ' the period of ' und •Lieutenant De.:~ E. Hall.tu..."'.rk ' , of the exc \;pted viords not guilty , of tho s u!)stitutcd words guilty.

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II SEili'T El~ CES

The Connriss i on in closed s ession, nll membe rs presant 1 upon secret i'Jri ttcn ballot 1 t~'IO-thirds of t he members at the time the vot e vms t~lcen concur­ring , sentences ea.ch of the c.ccused as follmw :

Yot•., Sh:i.geru 5:-., 1ndD. 1 a r c sentenced to be coo­fined :it he.rd L.ibor ~.t such pl ace '.:'.s the rovi.C\·1:i.ng author:i.t~p milJ' direct for five (5) ~·curs .

You, Yuse i · ·c.ko , ore sentenced to be confi ned at hard ~bor .'.\ t such place as t he i·~viewi.ng au­thority m.~y di rect for nine (9) yc~rs.

You, R~.'ltehi Okada , a r c s...:nt c.mcod to be con­fined o.t h<.'.rd labor .'.\t such pl ncc ~s the t:eviuw:i.ng ~uthority m.'.:\y dir \:: ct for five ( 5) yenrs .

You, Sotoj :i.ro T~tsuta , are scnt~nccd to be C<Xl­

f ined at hm·d labor at such pl.:i.cc ns the r \?v i ewing authority ~y direct for five (5) ye ar s . "

2 . Pre :l:...iinin~ Rcr.iarks :

a . · Purs~l:'.flt to pur:i.era.ph 2 , Spoci.:ll OrC:~rs No. 42, Headquarters, United St ates Forces , Chinn Thcnt cr , d~ted 16 F<;bruaI"J 1946, .:1. · l:ilitnry Commission v1c.s c>.ppointed for the trial of per sons , lU'lits and organizations ~ccusod a s war crimin·'lls in t he th~atcr 1 :'.!ld on COLlpletion t hereof, to transmit t~ r z cord of tril\.l, i ncl uding any judgment on sentence directJ.J- to Hcc.dquarter s , United St c.tes Force s , China Theater, for action by the appointing · authority (tho Com­mo.nding Ganer al. , United States Forces , China Th~:.tcr) (R551 Pros. TrMs . Ex. #2 ) . ~- four sepe.rat e letter s of trc.nsflri.ttal ill d:>.tcd 1B Fol>r-..i~i:-.r 1946, the charges nga.inst each accused in the ins t ant cnse -.ic::-c forwc.rdod by tro The:it e r Judge Advoc:ite to t he Co~anding Ge ne ral, Uni tcd Stl".tcs Forces , Chinn The:~ter, (~ 3, 5;7,9, Pros. Tr Q.ns . Ex #J.; 6, 8 , 9) . By firs t b dor s.:iments , dn.tcd 18 Februa ry 1946 , the chc.r ges r.gninst .:ill r.~c cused in the· instnnt cnsc ''1cre refcrr~d , to be tried in ~.com-non tritl I by the conm:i.nding Gener al, United Stat es Forces , Chine. Theater 1 to the Hilit -..ry Commissi on nppointcd by pur c.gr c.ph 2 , Special Orders t-;o . 42 , Hc.:i.dquar tcrs , United .3t~tcs Forces , ChiM. Thc.:it cr, dat ed 16 February 1946. (R J , 5, 7, 9. Pros . Trans . E>~. 114, 6, 8 , 9).

Upon t he innctivntion of l!.;.1dc.u.'.\r t0 r s , United St.3.t cs Forces, Chine. Thee.t or, 1 l!~ 1946 , the Commlndint; Gener al, United St at e s Army Forces , Chino., \~as nuthorized by ::n R;ldio · iAA 86430, dated 1 l:ey 1946, to r eview, approve , and order executed sentence s , including deat h scnt~nccs cdjudgod by military commissions appointed by the Comr.nnding Gener al, United St .:>.tes Forces, China Thee.tor .

Upon the inactivat i on of Hc.J.dqu.:.rto rs , Unit ed St at es Army Forces , Chine. , 1 Jul:; 1946, tho Co.:lll\.~nding Gener al Nwking

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ffo r.dquo.r t crs CV!iu.i.:..nd, Hus c.ut:1ur lZ ...)J by :;n i~.'.ldio far 93445 , d.'.lt c<.1 3 July 1946 , t u r uvicw, a!). ·rov 0, ~nu ur~ar oxccut.;id s entences , includin~ tl.;ath scntcnc 0s a<.l juJ..,cc.l by milit .:iry c ...:1:imissivns c.µpoint oc1 by the Coi:l!!1t.nJ in .. Goncr c.l , Unitot.l St .:it es r1r r11y Forces , Chino. .

b . Both th..: .)r c liJninary inv1J sti~,r·.tion of this case <mtl the pr cs e11t r ecor d i tsdf, (it 189, 274 , 301, Def . Tr ans . EK. {/10) i ndicr. tc.: th£\t cort cin other imp.)rtu.nt Jc.pc.nose per­s onnel were inv0lvcd i n t h.:: •)ff ... msos hor c chnr !_'.ecl c'.lntl tried , but wer e not D.vo.ilabl.:: for t rial f or differ ent r easons . For instance, i:njor 1-L.T.:. , 1h0 w.:i.s the ~lL:_·cd :;rvsocutor in tho unfa ir triJl uf th0 .. r.icricc.n c.ir r.1en , an..! Licut0nnnt Cohmel llJ.KilJO, th~ ~lle:~cc! chi. f jud.J0 0f th\~ Jnpane ::;e Tribunal had both di ed prior t.> th~ :)r .) s~nt trial. :1l so General H:.Th., Com:icndinr; GoncrJl of ti:"' J ."lpanese !:xpcdition.'.lry For ce s in Chinn, ·,·h.:i c.~JfX'. r cr.tly 01•(: .Jrc..! the Hec.--.dquart ers 0f t'.1e nccuscd, Gcncr c.l &mc...::lc. , t o t ry tho ('i_;h t flie r s , ~n..: Li0ut t:in['.!!t Gener al 3HIU01 .uru. , ;:,,J),JuU, \1h0 succeaJuct Gcncr c.l Sm·1<ldll .::.s Col!Uil!lndine Gon~ro.l of t he 13t h Jo.;xi.r...: s e :1r r.1y end _:. :J.ve the ur Jer f Jr the axocutiun vf the .'.lir1.1cn , •1er ,1 nvt cl i::fondants in the pr os ont cosc bcc.r..usc b0th wer e bcir.1..: hel d i n Tukyv in connactiun \lith the pr os ecution uf th.: Intcrnctiorol ;er Cr ines Case c.nd their r el .Jase t o th,1 cust1,1ly 0 f this Hcc.<.lquert ers .fur trinl as defcm­dants in t his ccse ·.:e.s r 0fus 13 <.l ,

c . The Cv11trt10n trial 0f th·.! .L'our occuGad b-::~o.n with t iloir .::rrni.:.;nr.1cnt on 27 Fobrurr y 1946 . Th.: co.mssion a tlj ourn-ed until 18 L:i.rch 1946 in .._,r J..:.r tv !Jr ..,vitl ... t!10 .bf ~ns0 tine t o visit J:;.pnn t ·::i pr ucur.: ..:vi\.:.Jnc ,; , s~cur .... c ...::rtc.in Hitnosscs, and pr..;~c.r ... its ens:;, T:10r 0nfter t: ic t r inl c0:1tinu0tl w1til judgr.1ent wns r un_:..:;r .:d by t.h_ c ...... u:d.ss i un 0n 1 5 ·~:1ril 1946. · ;.11 r cqU.Jsts 1vr ~'.i.._: for t lw l~'!L si.: in securin{: its \litn-.; sses, pr uvi..!in_ c.ir tra11s 1,ortnt 1..:in k · ~1-.: f r .1ra Jc.:J.::.n , etc ., wer e r oc.dily t_ r<..nt .... ~: by ti • .: cuui·t .:.n...'. t~ c.,,,.>vintin_ :.uth·Jrity . In c.duiti on t o t:K tHo r c~,ul~r ly C.;)j)ointcc~ .:.._r ..; i1se counsel , buth Unit.::J Stnt .:: s •. r :.iy ·.)ffic cr s cnJ .:i tt _rncys in civil lif(:, the accused \;er e c l s u r~,Jr0scnt.)l! by t hr ..!c J:lp~ncsc a ttor neys r oqucs t 0ci by th~r:. .:'.S i n :ivid.u~l counsel. The ;Jr usc cutiun was ccml~ tcd by tho t,, J Unit .c!. 5 t :1 t cs ~.r~y <>fficers , nlso ctt orncys in civil life , HLv ucr J n~u:t-:.:l in th..:: wrtlcr apµoint­in::; tb.J c01: .. a esi.:m . Th1..c or.tir e :Jr.;cccJ.in.~ s wcr 0 inter pr et ed in the J:'.)<'.n0.:;c l .:1n_:uc . ...;.:; .:'.n .. t r. vcr bntin r oc •Jrcl \IC S r..::d.0 thereof.

3. Ev i.denc e :

o. . Th•:) r .... cor d .£ th.) c.1S C is quite vohuni.nv~::: . It cont:d.,1s w or six hw1J!'c1 pu.:.. .;s of t oz timony, .:tr ,::wnont and misc.~ll.'.'.ncous f orr.is o f uocumcntary evi,·J enc c . Due to th.; L:init"ncy uf the rules fe r t he: ·· lmiss i bili t y of cv i c!enco in tri~s 0f this nc. ture t he r...,;·~or<.1 i.nclu.!0s rauch evidence of vcryin_: d~c;roes of rolevancy. In the f ollowin.:. c mpc.ru.tiv ely brief syno;>sis of tho evidenc e cited frur.1 t h<. r ec0r u, ettention hc.s been t;iven pr i.m.'.!rily t o tho s .:il ...,cti0.1 .,f unl:t the mur c imp•.1rtcmt roter io.l and relevJn~ facts .

9

b. (1) On 18 April 1942, sixteen B-25 type Army air­craft under the command of Colonel James A. Doolittle took off from the aircraft carrier Hornet , at a point seven hundred miles off the coast of Japan, at sea (R 44). The mission of this force was to bomb certain military objectives at Nago:,•a, Osaka and Tokyo, Japan. T:1e per sonnel on this so-called "Doolittle Raid" had been especially trained for it in Hegeland Field, Fl orida, wher e they had r eceived many hours of lo\'/ precision bombing in­struction and practice, etc . (R 40; p . 2, Pros . Trans . Ex. #21). The particular crcYis were selected from volunteers (R 40) and assigned to the specific planes that they were to fly on the mission (R 40) . The group flew to Alameda, California, and were assigned to the aircraft carrier Hornet , l April 1942 (R 41) . Aboard t he Hornet the fliers were briefed t horoughly about the flight to Japan (R 41) and their targets (R 42) . Each crew was given specific military targets and was directed not to use their guns other than for protection (R 43) . They were definitely instructed not to bomb non-military targets (R 43). Their mission was accomplished and only the crews of two of the planes that participated in the flight are involved in this case. They are the crews of ship No . 2298 and ship No . 2268, the 6th and 16th pl anes, respectivel y , in the order of take-off from the carrier ( R 44) . Hereafter for simplification these tv10 planes will be r ef erred to as No. 6 and No. 16.

(2) Plane No. 6 had tho follo\'1ing personnel as its crew: Lieutenant Dean E. Hallmark, pilot; Lieutenant Robert J. Meder, co-pilot; Lieut enant Chase J . Nielsen, navigator; Corporal Di eter, bombardier; and Corporal Fitzmorr is , gunner; (R 40, p . 2, Pros . Tr ans . Ex. #21) .

Plane No. 16 had the following personnel as its crew: Lieutenant \iilliam G. Farrow, pilot; Lieut enant Robert L. Hit~ , co-pilot; Lieutenant George Barr, navigator; Ser geant Harold A. Spatz, bombardier; and Corporal Jacob De Shazer, gunner (R 43) .

(3) Plane No . 6 t ook off from the carrier and f l ew over Tokyo and dropped its four (4) bombs on its military obj ec­tive , a steel mill (R 46, 48) . At no time were any of its guns fired over Japan (R 48). After making its bomb raid this plane l eft Japan according to instructions and proceeded toward China where it intended to land at Chuchow, China (R 49) . Due to shortage of gasoline , this plane crashed into the sea approx­imately a mile off t he China coast , near Ningpo, China (R 49) . Two of its personn0l, Corporal Di et er and Corporal Fitzmorri s , were killed as a r esult of its crash (R 49, 50) . The survivors, Lieutenants Hallmark, Meder and Nielsen, swam ashore (R 50) and on 21 April 1942 were captured by the Japanese on the Chinese coast (R 50) . They wer e then taken by boat to Shanghai (R 50), arriving there on or about 24 April 1942 and placed in cells in the prison at t he airport (R 51) .

While ht:: ld in custody a t the a irport , apparE:ntly s till pri !;oncr s of the 13th Army ( R 54), Lieut enant. Nielsen, undergoing quest ioning was eiven the so-called 11 water- cure" , kicked in the shin::; and s la.ppcd on the head several times when ho refused t o answer certain of th1..: questions (R 51, 54, 55, 56) . T:1c other two mc1:tbcr s of the crew wor(: given similar

10

•

treatment. Lieutenant Niels~n was also handcuffed and hung up on a peg on the v1all so that his f eet were off the floor until ho b0caroo unconscious (R 57). Lieutenant Hallmark wa• put on a stretching machine and stretched unti l he f elt as t hough his limbs were coming apart (R 56) . Tho next morning, 25 April 1942, Li eutenants Hall.mark , Moder and Nielsen were handcuff od, tied to individual seats in an airplane and flown to Tokyo (R 58) .

(4) Plane No. l6 flew on its mission directly to Nagoya (p. 5, Pros. Trans . Ex. f/21) where it dropped its four (4) bombs on an oil r efinery and aircraft factory (P. 4, Pros . Trans. Ex. ;~21) . Its .machine guns were fired before arriving at Japan and after l eaving Japan only in order to t est them; ot herriise the guns were not fired (p. 1, Pros. Tr ans. Ex. #22) . There was no strafing at any time (p. 5, Pros. Trans . Ex. #21) . After making its bomb raid this plan~ started for China also intending to land at Chuchow, (p . 7, Pros . Trans. Ex. #21) . Due to lack of gasoline , the crew o! this plane was compelled to abandon it, all five bailing out and landing near Nanchang, China (p. 7, Pros. Trans. Ex. #21). Subsequently, all five were captured by members of the 11th Japanes e Army (R 118; p . 1, Pros . Trans. Ex. #22) . On 20 April 1942 they were flo\'ln to Na."lking and then to Tokyo (pp . 8- 1.3, Pros . Trans. Ex. #21) . A few days later, about 25 April 1942, they were joined in Tokyo by Lieutenants Hallmark, hleder and Ni.:ilsen, the r emaining members of thl? crew of plane No. 6 (p. 9, Pros. Tr ans . Ex. //21) .

( 5) The eight flier s were held in Tokyo for about f ifty- two days (p . l, Pros. Trans. Ex. #22), during which ti.me they were imprisoned in solitary confinement . The Japan­ese Gendarmer i e here questioned them day and night for hours at a tillle trying to force information or admissions by brutal treatment . They were bea ten, ldcked , slapped, not fed proper­ly, not permitted to wash or s have and kept in l eg irons all this tiJ?le and not even permitted to r emo•:e t heir clothing (R 58-6.3; pp. 13-17, Pros. Tr ans . Ex. #21) . The fliers con­tinued at first to answer only quest ions about themselves personally , their schooling, training, etc ., although for the first eighteen days they wer e constantly asked questions about wher e they cane from, v1hcther they bombod Tokyo, \·1her e they were stationed, etc . (R 58-62) . Later, however , the fliers having been shown maps and charts that the Japanese had secured from one abandoned American planu, they finally gave the Jap­anese general information about their mission, etc ./ They later signed papers which wer e not r oad back to them but which they wore .told or l ed to bel i eve at the ti.me, only contained ~tatemcnts about th~ir families, th~ military targets they had assigned to them on their mission, et c. Thuy wer e not given qopies of thes0 st atements. Thes e statcrr~nts did not contain admissions on the part of th-.: flier s that they had ever bombed achools or churches (R 61, 62) . Somo evidence of the defense indicate.I othen·1ise .

(6) On 18 June 1942, all eight fliers wore hand­cuffed in pairs and transport~d from Tokyo by r ail to Nagasaki fro.en which port they wer e returned by ship to Shanghai, China.

ll

On t heir arrival in Shanghai they \lur e incarcerated in the Dridgc Hous0 Jail , v1he1·~ th oy wor e imprisoned until 28 August 1942, (R 64; p . 2, Pros . Trans . Ex. #22) . Bridge House Jail, apparently wJ.s ope; rated under thu jurisdicti on of the Japanese Gcndarmer ie and not tho 13th Army (R 318) . Its facilities were abominable--vcrmin, lice , bedbugs , r·at s , fleas and filth wore prevalent ; anc~ for some time: the:y wur o made to live in a single smnll cell, 12 1 x 15 1 with fifteen (15) other persons . The only l atrine facili ty was an open box in t he corner of the cell, and they Herc not provided with furnitur·0 or blnnk1..:ts (R 64) . Although Lieutenant Hall.mark was quite ill with dysentery while confined in his cell (p . 1, Pros . Trans . Ex. #26) he did not receive adequate medicul att..;ntion (R 6J~; p . 23, Pros . Trans. Ex. #21). He was never r emoved to a hospit al or given the caro clue on~ so ill.

(7) On 28 August 1942 , after spencling approximatel y seventy days at the Bridge Hous e Jail under' the conditions a s mentioned above, all eight fliers \lere removed to the Kiangwan Military Pris on, on the outskirts of Shanghai. This prison wa3 sometimes called the "Civic Center" (R 65; p . 24, Pros . Trans . Ex. #21; p . 2 , Pros. Trans. F.x. #22) . It was a br anch of the Nanking Japanese Military Prison and the accused Tatsuta w~5 the warden tnereof. Captain Ooka, Tokijira convnanded the main prison at Nanking (R 459- 460; p . 1 1 Proo. Tr?.ns . Ex. #31) . Neither the Hanking Prison nor its brunch i n Kiangwan were under the jurisdiction of the Gendarmerie or under the command of the ~3th Army (R 296, 331, 433, p . 1, Pros . Trans . Ex. #28), but was under the direct command of the supreme convnander of the Expeditionary AI'ff!¥ in China whose headquarters \·ias at Nanking (R 287) .

( 8) At the t Ure of thei r transfer from Bridge House Jail to Kiangwan on 28 Aut;ust 1942 all of the fliers were quite wcaJ: anc:t l•n.derweight and Lieut c .iant Hall!iiark was s till very ill ( R 64) . On arriving t µ ey wer e assembled i n a room

, before sor.1e Japanese officers whlch asseut.ly they later l earned was supposed to have been t heir court-martial t r i al . There ' were several Japanese officers present . Toe accused Viako and Okado .1ere among t hem (R 65-66), as member s of the court . The accused Tatsuta, att :mded the trial voluntarily , not officially, as a spectator for a short ti.me , (R 464; p . 2, Pros . Trans . Ex. #31; p . 2 , Pros. Trans. Ex. #32; p . l , Pros. Trans, Ex. #33). ThP. flfors s tood before. the Japanese officers who conversed in their own language . Lieutenant Hallmark was carried in on a stretcher l::1erc he continued to lie durins t he proceedings. He was ill but he v1as not attended by a doctor or a nurse . He did not, by his eyes or facial expression, recognize the others. Ho did not appear to have all his normal senses; he did not make any ~ ::.atemcnts or talk at all (p . 27, Def . Trans . Ex. #2l ). The fliers rrere sif.'lply asked a f ew questi ons about their lifo histories , t heii· school in_s and training (R 65) . After they answer ed, one of t he Japanese st ood up and r ead from a manu­script il1 Japanese . The flie rs made no other statament (R 66) . Ther e v.as an int erpr et er pres ent but he did not u1t crprct any­thing except. t hu flier s ' names, r an.' , etc . He did not make any attempt to ir,t erprct a nything el st: . The prococ;;dir1.;s \'/er e very short . It las ted a bout two hours at, the very f.lost ( r. 67, 326,

l2

381, 404) . The flie.::-s were not told it waa a t r ial; t hey were not char ged or advised of any charges against them; they were not given any opportunity to plead , either guilty or not guilty; they were not asked nor did they say anyt hing .about bombing

I • Japan (R 66, 67}. No witnesses appear ed at t he proc~ed1ngs; the fliers themselves did not see any of the statements utilized by tho court that t hey had previously had made at Tokyo; they were not r epr esented by counsel; no r eporter was present; and to their knm·1l cdge no evidence was pr esented against them '(R 66-67; 323, 326 , 381, 382, 384; pp. 27, 26, Pros. Trans . Ex. #21) .

(9) Prior to t he trial, a draft of a Japanese law concer ning the punishment of captured enemy airmen was s ent from higher headquar t ers a t Tokyo to Headquarter s of the China Expe­ditionary Forces in Nan.kins in July 1942, with instructions for tho l atter headquarters to "establish" the l aw. At t he same time Tokyo r equested the 13th Japanese Ar my Headquarters to def er its t r ial of the eiJht American flier s unt il the new mil­i tary l a\"1 had been enacted. The supr eme commander at Nanking (Gener a l Hata) "establ ished" the Enell\Y Airmen ' s Act on 13 August 1942 follo\·1ing the outline r <::ceivcd fro::i t he Chief of Staff a t Tokyo and t,hen issued it t o the 13th Army (R 281, 282, 315) . This l aw stated in substance that i t should take effect on 13 August 1942 and be applied to all enen~ airmen taking part in r aids against Japanese t erritorios ; that any one who shoul d par ticipate in the bombing or strafing of non-military t a rgets or who should participate in any other violation of internati on­a l l aw would be sentenced to death , l'lhich sentence might be commuted to life :L:1prisonmcnt or t o a term of imprisonment not l ess than ten years; and that impr isonment under the Act would be in accordance with tho provisions of Jr.panese cr iminal law (R 281, 282, 315, 430-433 ) . A staff officer f r om Tokyo was isent t o China to give i nstructions r \.!garding the trial of the fl iers and t o demand that General Hat u have the prosecutor r e­quire the death sentence and r eport t he court ' s decision to Tokyo (R 282, 286, 289) .

(10) The def ense contended that the court was r egularly appointed under thu authority of the Convnanding General of the: 13th Army nt the dir ection of higher authority and consisted of Major Itsuro Hata who substituted for Colonel Shoshi Ito, as prosecutor, and Lieut enant Colonel Toyoma Nakajo, as chief judge, 2.!ld thc;; two accused, i/ako and Okcda, as associ ate judges ; that the proceedings of the trial of the fliers on 28 August 1942 did not differ from the r egul ar proceedings of other Japanese t rials (R 405); that no pleadings ar e authorized by Japanese l aw, nor arc dcfons e counsel authorized (R 381

1 382) .

Further contentions by the d13f cnsc were that the court pr o­ceedings l as ted .:it l east two hour s ; that docwnentary evidence, consisting of at l~.:ist the gi st of the air raid damage r eports from Tokyo; and t hat the f l i er s confessions made to the Tokyo Gcndarmcric ollcg-..:dly admitt ing at t acks on non-mili t ary targets wer e r e.:>.d to the court ( R 319, 323 , 383 , 393 , 402) . The accused Wake denied this (R 383) . Although thcs\) purported confessions were supposed to havu had th~ si gnatur es and thumb prints of the s evc. rcl. America.11 fliers on th..mt, there is no evidence that at the so-cnllcd t ric l any at t empt was mndu t o ver ify or prove that th~sc wcr..: genuine or nctually those of thu fliers . No

13

comparinons ,.,er e made , no witnesses so test ified CR 417}. Apparently after its two hour session the court adjourned for lunch at which time it deliberat.Jd another hour and unanir.1ously decided and voted the death sent ences on all eig~t. fliers . There is some evidence for the accused that a r ecord of ~he trial proceedings was made at the t r ial, and either \·1as filed viith the 13th Army or was t ransferred to Headquarters at Tokyo in December 1944, where it was destroy­ed ther e in a fire (R 400, 456) .

After the trial a t el egra.n vias sent to Tokyo through l~anking announcing the sent ence of the court, and later a written report \•;as s ent (R 327) . Headquarters of ihe 13th Arm:t had been instructed to withhold any action on the sentences until Tokyo act ed on them (R 357) . Later instructions were r eceived from Tokyo to execute Lieutenant Hal lmark , Lieutenant Farrow, and Ser geant Spatz . Informa­tion was also r eceived that the sentences of death given the others, Lieutenant Meder, Lieutenant Nielse11 , Lieuten­ant Hite , Lieutenant Barr and Corporal I); Shazer, had been co.avnuted to lif c imprisonment with special treatment , by the Emperor of Japan (R 68, 329, 331; p. 5, Def. Trans . Ex. #12) .

On 14 October 1942, Lieut enant Hallmark , Lieu­tenant Farrol'1, and Ser goant Spatz wcr(; informed that they had been sentenced to deat h and that t hey would be execut ed the next day (R 69, Pros . Ex . E. F. G. ) . Tho following day, 15 October 1942, they were executed, being shot to death by musketr y at about 1600 hours (R 171, 183) . On that same day not knowing about the fatlil of the other three, Lieut enants Hite , Barr, Niel sen and Meder, and Corporal De Shazer wer e brought b~forc a group of Japanes e officials, apparently the court, and informed of t heir s entences and the commuta­tion thereof by the Emporor (R 329) . They were then r eturned to conf incmcnt in the Kiant;wan prison.

{11) ThG accused General Sawada \'las in command of the 13th Ar.rrry, with headquarter s at Shan3hai, at the time the fliers i'tere captured ( R 429). He r emained in command unt i l he received orders r elieving him on 8 October 1942 or ther e­about (R 433) . Th& new commanding general of the 13th Army, who was appointed as his successor, was Lieutenant General Sadann.t Shimomura (p . 1 , Def. Trans . Ex. #10) . Genaral Sawada departed fro~ Shanghai and r eturned to Japan on 12 October 1942 (R 451-452) . From 7 May 1942 until 17 September 1942 (R 430) Sawada, t hough still the: Commanding General of the 13th Al•rey with his headquartors functioning for him at Shanghai, p<::rsonally was absl:lnt at the front n0ar :<oshu and Kushu, about t hr ee hundr..:d miles away (R 279) . Neverthel ess , though he wasn' t in Shanghai at thl.! time of the trial, the t ribunal t:1at sentenced th~ flie r s was appoi nted under his command authority as Commanding Gonora l of th~ 13th Army ( R 446-452) . It i'1as his chop that he purposely l eft behind h~n at his headquarters that indicated t he official exercise of this authority (R 338, 430) . Colonel Ito, Sawada •s chief l egal officer , did not accompany Sawada to the front but r emained behind at Headquarters with the del egated author:i..ty

} I

to act on al l l egal matters , and the authority to use General Sawada•s name was given him prior to t he former' s departure for t.hc front (R 379-).

On General Sa\'Tada ' s r eturn to Shanghai on the 17th s~ptember 1942, aft e r the trial of the fliers \'ihich took place in his absence, he Has personally i nformed of all the proceedings involving the f l i ers that took place during his absence . Col onel Ito infor med General Sawada of the pro­ceedings he had directed under his del egat ed authorit y before trial , during the trial, and i.ri1medi at el y following the trial and told him t hat a report ther eof had been sent on to Tokyo. lie also gave SaHada a copr of t he r ecord of the tri al, the 11 stater.1ent of judgment", and Sanadn personall~, pl~ced his O\"m

chop t her eon. This \·1as not t he statement sent t o Tokyo but the document and stC1tcments th:;t \1ere to be filed in the 13th Ar my itself (R 433) . Smw.da str.t ed i1e f elt t httt t he death !:lentences "ere too sever e u.nd went to Ncnl:ing und pr ot est ed to the Coiruna.nding General of the China Forces but he , Gener al Hat a , said that nothing could be done about it as it \'tas exclusively up to Tokyo. Thereafter, Generc'.ll. Sartada did nothing further about having the sent ences. changed (R 330, 431, 432) . Neither the a ccused,, General Sawnda , prior to his l eaving Shanghci. , on 12 October 1942, or hi s successor, General Shimomura , who took command of the 13th Arm:,.-, ever a ttempted to exercise any po1.1crs with respect to suspension, remission or mitigation of the sent c:ices given by the court, (R 447, 448; p . 1, Def. Trans . Ex . ;no) . Sm-mdo. s t <'.t cd he did not have the authority to do so .'I.or to disapprove any of the court 's proceedings ( R 449). Sm;~da t estified t hc.t he personr.lly was familia r with t he rules of t he Genev~ Convention on prisoners of wnr for the treat ment of pr isoners of war, and that whatever Col onel Ito did in connection lli th t he Amer i can fliers , he , 3al'tadn assumed r esponsibility for (R 441) •

( 12) The accused Lieutenant Yusei : !cko wns an officer in the judicial depar t ment of the Jcpanese army and l'taS assigned to the judicinl department of the 13th Army in Shu.nghai in i;cy 1942 . His immediate superior ' 'ms Colonel Ito, the head of the l ci;c.l depart ment of the 13th Army. \'Tako, c. l awyer (p. l; Pros. Trans . Ex. #29) , v:as told by Colonel Ito that he ' 'Tako, would be a judge in the trial of the f l i ers nnd that the "0oolittle11 tri al was consi der ed t o be on im­portant case (n 380, 391). ' Jcl<o t est ified thct Colonel Ito and Major Hnt a discussed the case wit h him and with Colonel Ito prior to t he trial and tlmt t hese di scussions began about 15 August 1942 \'then the 13th Army r eceived t he Enemy Airmen ' s I.ct from Nnnking Headquarter s . Further, th~t t he court r eceived instructions from Colonel Ito t hat under the Enemy Airmen ' s Act t he deat h sentence was mandatory if the flier s wer e found guilty (n 385) . ~!ako r end D.11 the evidence prior to t he trial ( R 391) . He stnt ed tr.at "Di.nee the entire char ges were l ong we told the Americans they would be tried for bombing of Tokyo o.nd N<'.goyv. 11 (R 381 ) . He st~ted also thn.t only c. gist of the documentary evidence was rea.d in court,, that the f l iers denied firing on school s , and thnt the stc.t e­ments pcrson<tl.l~r given by the fliers in Tokyo were not read in court (R 383) .

15

{13) lhe accused Capta i n Okada was an officer with the 13th J apanese Array in Shanghlli , China , and in Augus t 1942 he wa s ordered to sit as one of three judges at the trial of the fliers. Jibout three days prior t o the trial when he received h i s orders to s i t as a j udge he was given advance noti ce as to the nature of the proceedings (R 402). He had sat as a judge on other courts and was not unfamiliar wi th trial procedure (R 4o5). On tho morning of the trial, 28 August 1942. he spoke t o the accused Wako , who was t he law member as well as a jud(;e on the court, abou t the case {R 413). Also prior to the t rial of t he e i ght fliers he heard about the evidence in the case , na~ely, the Tokyo Gendarmerie i nter­rogation and dauage reports (R 414) . He "l Joked through 11 two r eports and l'/ako e.xplaineci t heo to him prior to trial (R 416). Hajor lieta, the prosecutor also talked to Oi':l>.da about the case prior to trial (R 407). Okada testified that during the trial Li eutenant iiall.t:lnrk appeared weak Md l~ on a blar.ket or mattress of so~e kind throughout the trial (R 410) . Although he acted as a judge he heard only the gist of the docui:.ent s comprising the interrogation re~ort f r om the Gendar~erie in Tokyo (R 406). He also stated "it was not possi ble to p rove which bomber droppeci what bomb on what part of the city accord­i ng to the r eport" (R 4o7) . t hat no witnesses were brought before the court (R 415), that !10 defense counsel was pro­vidod for the fliers ( R 411). that only docw.10n t c.ry evidence was presented (R 323). that Weko alone asked the fliers questi ons about the raid, their training , etc., and t hat half of t he trial, or ab~u t an ::our , was sp.:m t i n t hi s line of ques­tioning (R 411 ) . ae also testified tha t only tho gist of these reports were r ead t o the court ( R 416); no 111e1.~ber of t he court asked the f l iers to write out their signatures for coaparison with the purpor t od s i gnP.tures a.nci thunb prints on the state­uen ts obtained fr oo the fliers i n Tokyo (R 417 ) ; no r eal evi dence of t he Nagoya and Tolcyo r a i ds was off cred by the prosecution nor did the prosecuti on require any witness to coue into court fro~ t he Tokyo Gend.ermeri e to substanti ate t he docWJent ary evidence fron l'okyo (R 427). Okllda sai d he personally based i1is finding of guilty and t he death sentence of oach of t he eight fliers on the Gendar rlerie i nvestigation, t he d&lage r eport, the rec.din& of the cilarges and the s t a te­oent s made i n court by the fl i ers (R 422).

(14) Followint; the trial on 28 august 1942 , Lieu.­tenant Hal.l.Llnrk , who wa s still c1ui te ill, was r e turned to the Brid.€,e House J a il where he remained until h i s final r eooval t o Kiar.gwen Prison on 15 October for his execution (R 65 , 67, 134, 349. 468 , 470) . The other seven fli er s were not sent back t o B ri~e House but were imprisoned i n s olitar y confiner;ient a t the Ki~an Prison where the a ccused Tatsut a was the warden (R 459-46o). Thereafter Lieutenant Farrow and Sergeant Spatz . who were i n Kiangwan Pr i son , were t aken out and executed with Lieutenant Dean~. Hallnark (a 151, 374 , 473) . Tho accused, Tatsuta a t the t i!.le was a civilian a ttnched t o the Japanese Jil'UY with the assia ilated rank of a sergeant (R 459. 464; p. ll , Pros. Trans. Ex. f31L iie became warden of the Kiangwan lUli tary prison i n Shanghai on 24 Decozaber 1938. This was a branch of the Nanki ng Japanese 11ilitary Prison under Captain

16

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Takojiro Ooka. He rcmain E:d its head until it was closed in March 1944 ( R 459) . <..-Captain Ooka at the Nanking Prison was his supprior , viho g<!ve hll1 orders in regard to Kiangwan prison (R 549) .; Tatsuta confined the fliers on a writ of detention issued by Lieutenant Colonel Toyoma Nakajo, the chief judge of the 13th Army military tribunal and so informed captain Ooka, his superior (R 459). On 14 October 1942, the day before the three fliers were executed, Tatsuta gave instrt·ctions to each of them to sign their names on two separate blank sheets of paper . o~e page was signed by each of them in tho middle of the sheet, and the other at the bottom. On thei r asking why they were required to do this Tatsuta stated they wer e r eceipts for their belongings and that ho would fill the r est in in Japanese l cter. One of the pri son guards testified th~t he had turned all these blank sheets signed by the fliers over to either Captain Yusci Wako or Major Itsuro Hata in the l egal section (R 200, 203, 477i p . 2, Pros. Trans. Ex. #26) . Tatsuta per sonally retained Liuut~nant Hallmark ' s l oather flying jacket, taking the no.rue out of it and having i t altered to f it hll1, after Hallmark \las executed (p. 4, Pros . Trans . Ex. #26) .

Tatsuta in his official capacity a s warden or chief of the guards was in charge of the execution of the three fliers. Ho suporvisod all the preparations ther efor (R 462). '£he condemned fliers wer e tied to crosses er ected under his supervision. Tatsuta himself tied Ser geant Harold A. Spatz to his cross (R 474) . Cloths wer e tied over their eyes and o. ple.cc marked in the cent.er of the p.:irt covering the forehaad of each. Th~ fliers were shot by three men of a firing squad of six men prepar ed f or it (R 153) . This squad was commanded by a Lieutenant Taj:ima who probably actually gave the colillili3.nd to fire (R 464). Death was instantaneous, the bodies being examined by a medical officer (R 151). Tatsuta signed the r eport of execution (R 474) . Thereafter, in individual coffins, t he bodies wer t: trcnsport\::d to the Shanghai Resident Association•s crc.mntorium where they wer e cremated (R 154) , and the ashes were placed in boxes and stored in the I nternational Funeral Home in Shanghai (R 205, 207). The r ecords at Intornationcl Funeral Dir~ctors, Shanghai, showed that the ashes of Lieutenant Dean E. Hall.mnrk, Li~utenant Willirun G. Farrow, end Scrgec.nt Harold A. Spatz, were stored ther e. However, shortly after the cessation of hostilities, some Japanese military porsonnol CC!Jlle to the off i ce of Inter­national Funeral Director~ and looked over urns containing ashes of prisoners of war (R 20e) . They r eturned a feVI days later and instructed that t he names be changed to 11J . Smith" (Hallm?.rk), "H. E. Gande" (Farrow), and 11E. L. Brister" (Spatz) (R 205, 207, 208).

As previously mentioned, immedi at el y following their trial on ~8 August 1942, seven of the fliers , all except Lieutenant Hall..mo.rk "ho was sent back to Bridge House, Vlere placed in solit<iry confinement at the Kiangwan prison where the accused Tatsuta was wurden. Following the executio11. of Lieutenant Hallmark, Lieutenant Farrow, and Sergeant Spntz, the other five fliers continu~d to r emain in th~ prison serving their life sentences unt.il they were transferred t o

17

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the militery prison c.t Nnnking, China on 17 April 1943 ( R 70; p . 5, Pros . Tr nns . Ex. #26) . Under Tatsuta the flier s , in cells 5' x 9 1, \·1cre kept in solitary confinement from 28 August 1942 to 5 December 1942 (R 69, 460) . They were given the srune f acilities for exercise as other prisoners v1hich was about thirty minutes a day (R 460, 469) . \'ihen they r emain­ed in their cells they wer o net permitted to t alk or walk around (R 70) . No heat was provided in the cells alt.hough it was col d enough to freeze water on many nights (R 70) . They never were given any additional clothing or any chD.nge of clothing, except one pair of stockings (R 25 , 70, 94) . The cells were ir1fest ed with lice and fleas (R 67). The only furnishings \·1er e gr ass mats on the floor, no beds, no chairs or t~bles , The only l atrine f acility was a hoi G in the floor of the cell with a can in it (R 67) . Sever nl r equests wer e made to Tatsut.'.l for additi oru:il food and cloth­ing that he either r efus ed or i enor ed (R 68) . The fliers were never visited by t he Rod Cross or any ot her r epre­sent.'.ltive of r. neut rc-.1 government (R 68).

Tito Kiangwan Branch Military Prison was not an internment C<Ut-q) or c prisoner of war camp; it was a j a i l (R 460) . The fliers r eceived about six ounces of rice three times a day .'.llld some soup or a few greens . Tho food furnish­ed them was l ike that provided Japanese prisoner s ( R 469) . Although the fliers lost a gr u.:>.t deal of wei ght at Bridge House, an average of about forty pounds, some started to gain some of it back at Kiangwan, but Lieutenent Nielson lost weight also at Kiangwan (R 94; p. 26, Pros . Tr ans . Ex. #21) . When the fliers l eft Kiangwan Prison for Nnnking in April 1943, all of t hem were in a prtlt.ty week condition (R 70). '!here wore no medical f acilities at Kiangwnn (R 349) .

On 17 April 1943, the fiv~ fliers, Lieutenant Niel sen, Lieutenant Meder, Lieutenant Hite , Lieut enant Barr, and Corporal De Shazer , wer e transfer r ed to the tl<mking 1.iil­itary Prison. Here Lieutenant Meder died while in solitary confinement on 1 December 1943, from m.:ilnut rition, beriberi, dysentery <>.r.d a general l ack of care . His illness lasted over seventy days during which time he was confined in the same solitary cell and rec~ivcd very little medical attention. \'vhen he di..:d he wei ghed only abc.ut on<;; hundred t en pounds

1 although when he fell into the Japanese hands he wei ghed about one hundred seventy- five pounds (R 74, 221; p . 35, Pros . Trtlns . Ex. //21) . The r emuining four fliers were kept in solitary confinement in Nanking until ~bout 15 June 1945 when they were trnnsferr~d to a prison in Peiping, China from v.hich the;r were l i ber at ed by an Am~ric.'.lll par.:ichute team at the end of hostilit i es in August 1945 (p. 34, Pros . Trans . Ex. If 21) •

4. Q!.~c~ssion :

.:?. . Charges:

The four accused in this C<'.Sl: wer e tried in a common trial w1der sep.::r at e .:ind differ ent ch.:ir gcs of viol a­tion of the l .:i.ws and customs of W.:!.r . Th e.: charges and the

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spc:cifica t ions t herL.of all ege; against th0 several accused wrongful a cts of convru.ssion e.nd/or omission, in substnnce , as fol l 0\1s :

That Sawada, as co11manding gener al of the 13th J apanese Army in China , caused the eight captur cc! American fliers to be tried and sentc:nccd to death by a Japanese military tribunal on f a ls e and fraudulent charges ; that he had the poHer to commute, r emit and r evoke s uch sentence s and f a iled to do so, t her eby causing the unlawf ul death of four of the fliers and the imprisonment of tho ot hers; that he was r esponsible: for th..: improper treatment of .'.lli the capturt:d airmen, having denied them the lawf~ status of prisoners of \'1ar; that in addition, he was r esponsible for the cruel and br utal atrocities and other offense~ , includ­ing the denial of proper food, clothing, medical car e and shel t e r , commit t ed aeainst hioutenant Ha.llma.rk, one of the e i ght .

That Tatsuta conr.ia.ndod and executed c10 unlawful order of .'.l Japanes e m.ilitnry tribuna l Hhich caused the death of three of the fliers , and that a s c onunanding officer of Kiangwan Military Prison he forcibl y dctainc:d a ll ei ght in solitar y confinement and otherwise unlawfully tn · ted them by denying t hem adequat e and proper shel t.;r , bedding, food, water, sanitar y f acilities, clothing , medical car~ and other c:ssenti a l f acilities .

That the two accused Okada and Hako unl.'.lwfully tried and adjudged t he e i ght fliers under f.'.l l su a nd fraud~ ulent cha r 3cs without affording then n f air ~ ric.l, inter­pret ation of the proceedings, counsel~ or an opportunity to defend, and scntcnc cct ther. to death .

In the .mattur of thc::.r substance, the charges a r e deemed adequntc a nd pr op--r in tlrnir ~-lle5ations of wr ong­ful acts by the accusc:d comr.tittcd in viol r.t ion of the laws and custoJJs of v1<:>.r . Her c the t est is internnti onnl l aw, not the national law, civil or milit.'.lry of any one nation, not th(.; l <:'.\'I of the United StJ.tes nor of J apnn, but the law of nations . J apan and th0 United States both wore parties to the Ha~ue Convention, and Japan agr eed to abide by the provisions of tho Geneva Prisoner of \!c.r Convent ion (See Pros . Ex.. 11A11 , R 38) .

The offenses of t he accused ur c not the usual type of war criminal acts that huvc been the issues in other tria ls to date. Indeed, it is bclieve::d thct this ca s <: constitutes a precede.it in t his r~gard .

The form of the charges , 11ith thu use of spec­ifications ther eunder, properly and adequat ely inform...id the accused of 1:. he allegati ons agains t them. Tho sp eci fications s e t f orth the specific f acts and circumstances r e l ied upon as constitutin0 t he el ements of the w.'.lr crimes chnrgcd. Tho t e r m 11spccificc.t i ons 11 , as her e used, docs not havu the same t echnical l imitations thnt th-- J.rticks of ::nr <:'.nd -:.he Manual

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for Courts-Hr.rtinl of the United State!; Arrey pl ace upon it . The "Regulations Governing th~ Trial of Wor Crimin~ls 11 as set out in lctte~ Orders, U.S. Forces Chin~ Th~ater , dated 21 Janu~ry 1946 (Pros . Truns. Ex. #2) ment ion no such limita­tions . The specifications as her e utilized merely take the plac~ of a oill of pnrticulars . In the r ecent case of Yll.mashita v. ~CJ!:~ decided by the United States Supreme Court , it \'Ills st~tccl that "Charges of viol.'.:.tion of the l aws of war triable bufore militnry tribunc'.l.ls ncod not be stated with the precision of a comr.lon-law indictment" (66 S. Ct . 340, 349) .

(1) (Unlawful trial)

No individual should be punishud for an offense against t he l aws of war unless pursuant. to a sentence imposed after a t rial by a mili tary court or conmission or some other tribunal of competent jurisdiction (Par. 356, FM 27-10) . It is axiomatic that certain minimum safeguards must be guaran­teed a defendant in any hearing nhich \IOuld justify its being termed a "trial" . Hhile a sovereign state is free to adopt any law it secs fit , however anachr~tic and barbarous its enactment i~ay be, neverthel ess , civilized nations are not obl igated, either in law or in morals , to be bow1d by such barbarisms . Here it otherwise the least civilized nation would be able to stop the progress of ju.stice and soci ety in general. Thu.s the contention by accused (R 436) in this case that the proceedings they utilized to condemn the American fliers wer e proper and udequate merely because t hc;y were :i.n accordance with Japanese law is clearly nithout merit .

Evidence in the r ecord shO\'iS that at least three of the accused in this case, Sawada, Okada, and v;e.1<04 prior to the completion of their wrongful acts in connection with the so-called t rial of the Americans, either knew or should have known that the EnelI\Y Aimen ' s Act was ~ post f acto terroristic in concept and that it was e!'lacted primarily to permit a pseudo-legal sentence of death for the 110oolittle11

flier s . They knen or should have known that the proceeding was delayed uni..il the law was enacted; that it was ~ post facto in t hat it was promulgated aft er the fliers bombed Tokyo and provided for a r.iandatory death sentence where only

~ a permissive death sentence existed before. Their own ev­idence proves~hat only a permissive death sentence existed under Japanese law prior to the enactment of the Enerey Air-

1- men 1 s Act_).Pros . Ex. #25) . There is no contention that there existed a mandatory death sentence under the law of w~r . Thus the enactment of the l aw in purpose and appl ication was patentl y illegal and the accus ed in acting under it were not acting pursuant to a l awful order of a superior or govern­ment .

The opinion of the majority of t he United States Suprel.l(;: Court in the recent Yamashita r1ar crimes case holds that certain Articles of the Geneva Prisoner of \':ar Conven­tion of 1929 ( G. P. r:. ) .:.re applicabl~ only to offenses

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committed by a prisoner of war aft er capture :md not t o of fcns es commit t .:::d while n combatant. It is also apparent, however, from the court ' s decision thet cert ain fundamental rights of hw:ian b~ings , whether or not codifi ed, are accorded t o both pre- and post- capture off ender s by the custornAry or common l aw of war J S adher ed t o by civilized notions . Captured enemy personnel can be considored as f alling within several cate~orics J S r egards rights and pr ivileges t o be accorded them: {l) not accused of pre- or post-captured offenses , (2) accused of post-capture of­f enses , (3) convicted of post- capture offenses , (4) accused of pre-capture war crimes, t:.nd ( 5) convicted of pre- capture war crimes . No i t her the general l aws of war nor the Geneva Prisoner of 'lar Articles enumerat es the specific t ype of protection to be given the v~rious classes of prisoner porsonnel but it is evident th~t graduat ions exist. Thus, f or example , tho privilege of making compl aints about tre~tment is provided f or those guilty of post-ctlpture offenses ( G. P.'l., Art . 67) ; s eemingly without r egard t o s t atus, corporal puni shment, imprisonment in quart ers wi thout daylight and cruelty in any f orm are forbidden , (G.P.\i., Art. 46), nor m:ly a prisoner be sontenced without opportunity t o dl.?fend himself, nor m:iy he be compell ed t o 'ldmit himself guilty ( G.P .'.i., I.rt . 61); imprisorun.;lnt pending trial is t o be restricted c.s much as possible (G.P • . :., Art . 47).

Thus showing th~ vari~tions in privileges attend­ing the: status of classes of prisoner, the Yamashita decision holds that a prisoner accused of u pre- c ·•pturu crimo is not entitled t o tha pr ot ection of hrticlo 60 (requiring notice to protecting power of opening of judicial proceeding against prisoner) nor that of Article 63 (pr oviding th~t sentencing court and procedure: must be s<lrl\c ~s t hat avai l able t o troops of det aining power ) . I t is to be noted, however, that although the court appears t o r ul e t hat Article 61, supra, applies only t o post-c~pture off enses , it is c qr of ul t o point out t hat:

"Independent of notice r equirarncnts of tho Gcnev3. Conv~ntion , it is a viol 3tion of tho l dw of war, on whi ch there coul d be a conviction if support ed by evidence , t o inflict capit al punishment on prisonor s of war without affor ding t o them oppor­t unity t o make ;i def ense" . (66 S. Ct. 340, 352) .

Not distinguishing bet ween priscners of wnr ac­cused of offenses committed aft er capture nnd those accused of offensus conunitted as comb~tants, \'linthrop, a well known American Authority on t he l ~w nnd customs of war s t at ed in 1886, l ong before th ~ Geneva Prisoner of ' Tar Convention, thr t nl­though cr iminal war courts nay be somewhat surnmr.ry in their action they must af f or d tho def endants certain snf eguards such as th~ right t o counsel , th~ r ight t o n:ike special pl eas , the right t o n f air trial, e tc . ( V/i nthrop, Uilit :!I'y L:lw ~ Pr ece­dents, pp 836-842, 1920 Reprint). Appropri~te s3fcguards Wlder the l aws of war th;.;t shoul d bu accorded an accused w'U' cr:ininal, according t o Oppenheim, include a f air end public t r i al ancl tho el imination of any purel y SWMlury punishment procedure. (Oppen­heim, International~. Laut cr pacht ' s 6th ed . p. 458) . Uumer ­ous other authoriti es arc of the opinion that off enders against tho l aws of war ar c .antitled t o a f ai r trinl. (Seo Glueck, !,!!!: Criminal~ ). It is manifest, therefor e, that cert ain

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fundom~to.l right s attach to .:i.ny prisonur of war oven v.hcn accused or convi ct..;d 01· pre-capture crim~s . Bot h by the wri t t en :md customary l aws of wor, captur6d p l.!rs onn~l nre cnti tl cd to nn opportunity t o mnke a de f .:nse nt trial and to b e protect0d against cr uel o.nd inhuman treatment and punishment .

:'> compa r i:.ion of the trial th l· J npr.ne:se accorded · the .'.mcrica ns to this , their own trio. l und vr t he.: l aws of war, i s pertinent at thi s poi nt. The accu~~d in the inst<!Ilt case were ~ssign..::d quali f i ed counsel by the: Uni t l.!d ::Jt:-. t 1..: s Arr::',Y , c'.ll1 d, in addition, t hree J e.pnncsc att orneys o.t their oi.m r .:qu es t. The J .:i.pane sc p~rm:ittod the flie r s no counsol or opportunity to make a def ense . Thc.:ir mock trial l es t cd o. l!l<'--'(imum of two hours . I n t his their own trial thuy wer e allowc.d a l l t he time they rcqu~3tcd f or the prepar ation of their d~f cnse and oach a ccused was o.ccordcd the opportunity and o.vc.il~d hiosolf of i t to t aku tho st cC1.ncl .'.lnd t ustify in hi s O\"m behalf. Thair public trial 1.;;s t ed f r om th u 18th of r!--.rch until 15th :~pril 1946, the unti r.: procoodings bving int1.:rpret~d in their own l anguage nnd n v<. rbotirn. record r.w.dc: thcr oof. Th1:1y a l so we r e p rovided trans po1tation fr.:e to Md from Jop on for th 0ir witnesses ::md d\;f1.mso counsel . Thus , t hey h ·_vc b l:: .... n '.lff o r dcd r.11 t he esson­tiol s a f oguo.rds cnumc r nt .:d by th(.. :.:--ticlus of t he Gt.me Ya Con­v1.:ntion :md oth{;rrli.su r ; cognizud unt!er thu L.-.~ of w:ir .

This .LS 0 :1e: of ~uv-. r.11 CD.S1.:.; tried by United st.~t es tiili t J.ry Commissions in Sh~ngh 1i , Chinn , under t h o same r eview­ing authority. I n e:i.ch of t h em the ~ccus 1.:d Jap.:mcsc hnve b<...en of for d .... d U. s. :1rmy counsel nnd all thu othe r rights "nd priviluecs .hid: d-.Jno::tln.!t~ .:i judiciJ.l procecdi nt <?. "fdr trial". I n c ontro.s t , it is ".p_u<!r cnt th _•t th <;1 J np:me::w in 0 !'dcr to t crrori z.; th.:: 1..n. ... '1y ~s <'. mc .'.!11S of w1r dinG vf f .~ir ~t t .. cks , tried to crunoufl.: .. ;;e th...:i r (;Vil purpose by crc:t ing thv fiction of :i l "w 311d a j udi ci.:il tribun~l. Th0 uso of such l ... t:, : 1 cover t o conceal criminal i t y of purpose r -.:nd .Jrs t h_,ir s ubsec:ucnt illcg.11 conduct t he m0 re r cprdw nsible . ,m .... t hur for ;>ropognnda. purposun ("fa.cc s2.ving 11 ) o r r .... vcnge , t hu .• in.:iri.ca n cor:1oc.t ~nt s w0r c not t r or:t .:;a 1--.· .. f ui.ly as prisone r s of \'Jnr but w-..r o tortured .--.nd murde r ed by thdr J~p;mcs c c nptors in m-in.i i nstances . The nccusod in the ins tr.nt c:~~ contt.nd lih~t t h0j compld..Jd r. l~wful proceeding , ~lth ough th-.; e vidence shows thl!t th <.:y kno\·1 i n .:idvance t h e r csult t h;:>..t •.: :>.s to b e ru~ch c:d. Tho on.:tct ..... nt of dS post f c.cto spc ci c l l ·.gi s l -.tion :!nd tlto instr uction uf tht? trial authorities th · t th~y should f ind the ~irmcn e ui.llJ th~r0under i rrcspcctiYe of pr oof of o.ny char gea is cl e:lrly ~pp~r~nt . Such conduct i s indi c; .... t iv..: o f c.n uttc:- disrc.g~rd of the J:H1s :!nd custoi:ts of •1<>. r ·nd -: ~.nnot be distin5ui.sh~d fr 0r.1 th~ nor e conunon f orms of p~rs0cution .

(2) (Unl ~wful Trvi!t m\;nt )

Th..;r c Wl!S nn excuse .,.,'h .. t soevcr fo r the c r uel : nd brutr.l tr" ~ tncnt "'.ccordcd t h1.: Oooli ttl(: fli ..:rs a t t h..: time of

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their cnptu:i:-c , a nd during their lont; confinem .... nt and intc.r­rogat.. ion in To:,yo , nor for th<:: continuud unl~mful t r catm .. mt accorded them c.t Bridgd House on th1::ir r.::turn from Tokyo . Howevc:r, the Jc.pa.nus~ uccused in thu instc.nt cc.so m::1r e not chc.r ccd ni t h or convictud of thos o c.tr oci tivs , a lthough there is some evidence that t he mistrc.:atmc:nt of the: c r ow of pl ane No. 6, ~t the ti.no th0y wcr ..: first brough to the airfiel d l!t ShM~hn.i from Ningpo .'.lnd tortur..:d, Her e pri son .... rs under the control or the 13th :...rnzy commondcd by the ac~uscd , Gener al SnwaC.:c. . Sc.11c.dc. knew thoy wvr\.. ther e and stc>.t cd he ho.ct control of the .:-.irffold ( R 439) . Th\; 1.Nidencc of th..: torture c,f the fliers during their i nvustigation in Tokyo is very pe rtinent when t cl<:c:n into considcr c.tion with the f v.ct thnt purported confessions \"/er e made: by the flie rs nt tho time of thnt inves ­tigation admitting att~ck on non-militc.cy t c.rg1..ts . If ther e wa s such evidence n!'ld it wc.s us c.:d at t hc:i.r tri.c.l, clrerly such use vies impropcr. Thu untrustworthinuss of ~y admissions or confessions Il'k."?.clu under tort.ur...: YJOuld clo.:-.rly vitiate a con­viction bcscd thcrco~ .

If purported c dmissions or confessions wc r \; used nt th..: tric.l of the flivrs a nd acccpt ..:id by tho court, th~ fact that member s of the court a nd others •~lso \''ho wur u r esponsible for the proceedings did not go be.hind t hem t o c.sc1..rtc.in the circumstv.nces under which they wor c obtc.inod, would itself in­dicnto unfr.i.rncss .'.lnd crimint>.lity on the; p~rt of the .'.lccuscd Japanese . The ~ccus~d Jnp~nuso contend that th0 formal trial of th(; Amcricl'.ns took the short t:Une; of two hours for tho r eason thct thu procodurv bufor~ t ri.ol , namel y , nl l thv invvstigations and intcrrogc.tions t'.nd uvcn th0 discussion of such matter s by indi vidur.l mcmb0r s of thv court prior to th1.. convening of court , nrti c.n i nclude;d par t of :-. J r.pM1::s c judici~.l proce;cdin3s under Jopanus c lt-.w. Ti1is cont\,;ntion of 11..g::i.lity of such proceedings must f :\ll \"1h..m thl.! stc.nci.:irds of f~irn .... ss undc.:r inturno. tional Llw c.r c cons i der ed .

i~ bclliger c.nt m..'ly ch:-.r g .... ~- prisonvr of wc.r with crim(;S c.ll~s ... dly cor,unitt~d whuth~r prior to c.:'.pt url. or aft er ­w~rds . In ei ther c.:is u he docs nut , merul y bc~nuse of t hu institution of chc.r ;;es , l ose his stc.tus as ~ prison< .. r of wc.r . Ho r unw.ins .:i prisoner of Hur; l!ccuscd of violt>.ting ui.th..:r tho l .:iws of \'l.:lr or thv laws of his cc.ptor , i~S oJ.rur.dy mentioned, t he law of \'lar recoJnized that anyone ·.-1ho violates it may be treated as a Har cri.r.ri.nal on a proper conviction thereunder. As a convict ed Har criJ1dnal an indbi<.lual can be lawfully re­quired t o undergo punishment, even so, such punishment itsel f must be lawful and humane . In other words even e. legally con­victed war criminal must be accorded certain minimum r i ghts in connection Hi.th his punishment. whi le in t he custoc:l,)1 of his captor. For instance he cannot be denied fair t ~~eatment , adequate shelter, sanitary facilities, modi.cal ca re and proper f ood and \"mt er •

The evidence shows that while in the Shanghai area, when before t r i al the eight fliers Her e hel d in Bridge House and after t rial when Hallmark was r eturned t o Bridge House and the others \lere placed under the cont r ol of the accused Tatsuta

23

at Kiangt·ian Prison , the, Commanding Genor<!l of the 13th Army, Sawada, :1hosc court triod t hoai, did not maku any inqui ry or inspection of the t r e:atmont of tho Arncrica.1s . The laws of viar place the duty on tho captor to s ec that µroper truatracnt is accorded prisonvr e . He know them to be military prisoners; ho knc:m ·i:.h..; la·:1 r Qlat:i..na to such prisonors, and uns dar ulict in not cn:cr :::i.i1J out his r usponsibilitics to so.f..:JUar d tham from abuse Md rJiotr0atmunt . Th..: vvidc.nco also shows that tho accused Tatsuta duniod thu fliurs, o.xcopt Hallmark r1ho was r uturnc,d ·i:.o J rj •1:-;u House , the rtlinimwn ri:;hts of 1-.:gally con­vict~d r:ai· criminals while thuy W'3r c u!:ldc..r his control tis v1arden of Kiang.n:i.n Prison follov:ins thu trial . Having s oon Hallmark prostrat e in tho courtroom and havin~ noted thu thin, dirty, urnJhavun condition of th(.. othors he: r1ao pttt. on notico of their need for prop~r tr.Jat n1.-nt thcr ... aft1..r. Although Okada and Hllko ,.,oru !1ot. chargotl with r osponsibility for th1.. improper troatmunt of the fliers bo!'oro or artor tric.1, thoy too snw the physical condition of tho flier s , in particulllr Hallmark, and could, i n t ho lisht of such 0vidtmco, bo hold pnrtially r uspon­sible for ~vvcr having voicod ru'lY objections to tho prisoners boing rc·;;urncd to tho troetr.1c.nt t ho.t ·t:.hcy apparoatly had beon gutting . Tl1is <lcnial of ovun tho mi.nir.ium rights of a l a.wfully . convictud prisoner of V!.:.r , to tho flior s and condon&.tion of the brutal tl'cV:i:.rucnt of Hallr:.1£'.rk , is cvcm ;ooru r opr c:hcnsiblo in view of th::. fa.ct ·i;!1li.t t !HJY woro unlnwf W.ly convictod. '!'hoy \'lore ontitlo<l to tl1.J :ci,;i:t s and pri vil c3es of honorc.bl o prisoners of viar.

C e Findinl7S! --~

All f our Japancsv accused vx:r~ f ound guilty of tho char Bos of violt:?.t5.n~ the l a\1s of 11ar. It is true the commission found tho a ccused,. Gonoral Sawe..cla not guilty of he.ving tho pOl~or and fc.ilir1~ to use: it to cofllt:\ut o, r urnit tmd r evoke tho sentuncos 3ivon t;,.:, fliers 1(Specification 4) . In ma.kin3 its findings of c:i.ti.lt~r, the tliJ.it<!ry Commiss i on lll.1do certain oxccptiono ruid substitution~J to t ho chnJ:'~u:> ~nd it announced C(jrto.in co:1cl usions in conn ... ction rJi t;h its findin3s . I n con­siderin3 the effect of thcs" OXC.:Jptions and substitutions in connection : :iti1 tho convictions, tho Cor1unission ' s conclu-sivns nro p0rtinunt .

The Commission ' s gc.1 ... r r.l ccnclnsion is as follc.\·1s:

111'w offuns c of each of t he.., accus1.;c:i rvsultud lllrg~ly fro;.: obcdi~ncu t o tht. L"..VJs ~d instructions vf t hoir Govc.rn;Jcnt e.nc! t heir Uilitc.ry Sup..:.riors . They cxur ­cisud no il:itio.'Civc to uny m~rkud cl03r~o . Th~ pr<:­ponclorc.ncc of 0vidonc0 shows !xlyund rv~s •.:.nc.blc doubt t !mt othor oi'ficvrs, includinG hi:;l1 :_;ovur:li'.lo:it c.nd militc.r:1 0fficinls , ,.;..,r o r e:s1 .... .msi!Jl1.. f CJr th.:i o&l~.ct­mont of t:10 ex pos·i:, f o.cto 11EncJll3• Air:tl~•• ' s L"-W' and the i3su.c . .ucc of spvclcl instruct i ons <.'.s t u huw thuso Amcricr-'1 Pris(i:iurs \'.Ore. t u be tr ..:.".i:. .:cl, t :ri..,d, son­tcncocl r.:.1tl punished . "

f From ·i:,h ..: ~buv<.. , it is c.ppnr1.-11t t h.:-:(, thu corumissi on conclud1.-cl ·;;h..::.t t ho c.ccus~d's ..:,ff ... nsus w<:r u not 1..ntir1..l~· the; cun­~uonc~ or sup1.-rior urd1.:rs . Althc.ugh othor of ficcr s <'-l'\d high..:>r

24

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authorities and not the accusod in this cnse £\re regarded by the Conmission cs r esponsible for the enactment of the il­l egal En~ Airmen's Act and the issuance of special instruc­tions as to how the Americans were to be treated, tried, sentenced ~nd punished, such "superior orders" themselves being clenrly unl~wful, action taken by the accused under them is likewise unle.v1ful. The l egal effect ot the acts of tho r.ccused under unlawful orders will be discussed later (pr.r 3 d, infra) heroin.

Fram the other specific conclusions of the Com­mission concerning e~ch accused, when an~lyzed with its find­ings of guilty 11with exceptions and substitutions", it appears:

That as to the accused Sav1ad;i, the Conunission' s verdict in substance was that, cl.though he authorized the un­.fair and unll!.Vlful trial which r esulted in t ho unlmv.ful sen-t ences and subsequent mistreatment of tho fliers and also "allowed" cruel and brutal atrocities and other off onses to be colllllitted against Lieut enant Hallmark after his trial, the war crime he thus committed was partially due to his criminal negligence or acts of omission, nnd partially due to orders superior to his own, rather thlln due to personal design on his part;

That ~ to the accused Okad~, although he was guilty as charged, there wero some extenuating circumstances; and although he voted the death penalty, he did this in obe­dience to superior orders;

That as to the accused Wako, although he was guilty as cho.rgod, ho too voted tho death penalty in obedience to superior orders;

That ~ to the accused Tat sut a, he was not the comnanding officer of Kiangwan prison but its warden and in such capo.city acted ~ executioner .ind cnrried out o.n ~w­tul order thct caused the denth of three of the fliers; th.it he did not person~.l.y give the firing squad tho conmand to tire; that DJ.so in his capacity as warden, he unlawfully forcibly detcincd the fliers in solitary con.finement, and denied them adeqWlte shelt er, food, water, sanitary facilities, medicc.l. care, etc; ~d that in not according the fliers the treatment of honorable priso~ers of war he o.ctod on special instructions from his superiors.

d. Defense 2£ superior orders:

It seems to be the common contention of the accused in war crimes trial s to dat e that they should not be held responsible for their wrongful nets because they only carried out instructions or orders of their superiors or their government. It is also quite common in such cnses for them to insist th~t the orders wer e issued by one who is known to be either dead or otherwis~ not avail.able. In the instant case there can be no doubt thD.t although some arv dead, a number of other persons in addition to the accused should and will be held to answer for their own crimes agcinst the per­secuted captured airrren here involved. There is little question

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but that Colonel Shoshi Ito. Generals Shunroku He.ta, and Sad.emu Shimomura. should b.e tried for their unlawful acts in Ulla case. and the proper United Sta tee authorities in Japan will be 10 in­formed. Certainly, continued efforts should also be .made to bring to Justice those who were re1ponaible for the torture of the fliers in Tokyo.

~e general rule is that where an order cocmanda the doing of an unlawful act the orcier itself 18 illegal and both the one responsible for its i1suance and the one who obqs it are guilty of the wrongs perpetrated thereby. Oppenheim 1tatea that where it is a fa.ct that a lnlle of warfare has been violated in pursuance of an order of a belligerent government or of an individual belligerent commander, it does not deprive the act in question of its character as a war cri.Q}e; neither does it, in principle, confer upon the perpetrator iLlUlunity from punishment by the injured belligerent. (Oppenheim, Inter­national. Ids!. Lauterpacht 1s 6th Ed., p. 452). The Rules of Land Warfare, as published by the War Departrilent, provide:

"Individuals and organizatione who violate the accept­ed laws and cue tome of war ~ be punished therefor. However the fact that the acts complained of were done pursuant to order of a superior or government sanction ma.y be taken into consideration in determining cul­pability, either by wey of defense or in mitigation of punishment". (Par. 345.1 F111 27 .. 10).

Normally where an order coar.iands the doing of an act which 1e unlawful but the order is legal on 1 ts face and the sul>­ordinat&--one who is bound at his peril to obey, ae for inetance a mel:lber of the military or a. sheriff protected by hie precept­aeta in good faith under its authority• then such a person 1e protected or at least mey properly receive uitigatedpunishment under the so-called "doctrine of superior orders". (See Winthrop, lu~itarx ~ !QS Precede~ts, pp. 886, 887, 1920 Reprint; Regs. Hq. US.oCT, 21 Jan 46; W. D. Ed. Manual No. 11 , p. Jl).

It is 1;;anifest. however. that an unlawful act com­mitted pureuant to an order or governmental sanction cannot protect the one who COIJmits the act even though the order i8 apparentl.¥ legal on its face, if he did not act in good faith or if he had or reasonabl.Y should have had knowledge of the wrongful aspects of hie act. If the one who c<¥iU:li ts the un­lawful act doe a 80 not in good faith or has or should have had knowledge which wollld cause a reasonable man to doubt the legal-1 ty of the con temp lated action, there i a no reason to excuee him. even partially, froo the consequences of carryill6 out an illegal act. In determining the ieaue or degree of guilt, the aurroundint; facts and circumstances must be weighed, includinc those of ~e, experience and atatu1 of the actor. The foregoinc oommente on the doctrine of superior orders will be considered further where pertinent to the discussion o/. the acts of the individual accused.

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e . Individual guilt 2.£. 1!!£ accused:

Three of the accused, Sawada, Okada , <md Tatsuta wore sentenced to five ( 5) yenrs confinement o.t hard labor and the f ourth \'lclco, to a period of nine (9) years. The Military Commission lW.s the judge of the facts and had the advD.nte.ge ot s eeing c.nd heD.rin g all the witnesses. It was in n position to detcr r.tlno the woight and credibility of tho t estimony. In addition to other witnesses, O:U tour accused took the stand and t estifi ed l'.lld one of the mistrented fliers, Lieutenant, now Cnptt1.i n Chase J. Nielsen, r eturned from the United states and t estified ngninst the accused.

CertD.in facts in evidence against the severD.l accused hc.vo alroo~ been mentior1ed ct dif f er 311t points in the for~going discussion of the charges, findings, and the nature of their off enses in r elation to tho l aws of war. \'11th the "doctrine of superi or orders" to be consider ed m ere pertinent, and for the purpose of enphMis in commenting on the wrongtul acts ot ecch nccuscd, additional f a.eta nre stressed ns follows:

Sn~, as the Conmn.nding Gener~ of the 13th Japanese Army nhich unl'1w~ tried and s entonced the American fliers t o death had the commond responsibility for the trial (R .441). It w~ his chop that nuthanticntod t he unfair pro­ceedings (R 338, 430) • He wD.S n s enior officer l'lith forty years s ervice , hoo served in 3. diplo41Atic stetus in foreign coWltries throughout the \IOrl d, end w<:.s f amiliar wit h internetionnl law and the rulos of warfare (R 44l., 436). Ho knew or should have knol'l?l tnc.t the fliers were t ried under D.n ~ post .facto law specic.ll.y cnnct0d f or their cnse , thr.t they wer e not permitted the right to n..".ke a dof e1130, o..nd that they were ell s entenced t o deat h on illogc.lly-obt ained and inc.dequ~te evidence. He personally pll'.Cod his chop of authonticc.tion or npproval on tho "Statement of Judgment" al.though he WD.S of the opinion that the sent ences wer e too s evere (R 433, 434) . As tho fliers wer e r eturned from Tokyo to be tried under tho 13th Arey (not under t he 11th Aruzy or any other Arcey in Chine) o.nd sa.wada wc.s its Comm .. ".ndor, he clearly had a l egc.l duty of assuring them n fair t rio.l ond proper trcetment under the laws of war. Thi• duty he either .fail ed to r ecognize or othorwise cc..rry out.

Although Sc.wadn • s coimw.nd cover ed Shnnghai. and its vicinity l'.lld ther e were a. nwnber of internment comps and prisons with prisoners of war inccrcerc.ted in them, including Bridge Houso end Kio..ngwan Prison, the record shows he never c oncerned himself with inspect ing them or check:ing on their f acilities or t(rec.tment of prisoners (R 438). Ho "sta t ed in evidence th.::it he ho.cl ~t.tQd jurisdiction over Kiangwan Prison (R 435). He admitted that nlthough this Prison w<:.s only three hunclrod ycrds froa his personD.l hendqu~rters he never went inside it or concerned hiinsclf about its prison~r;Y(R 440). 'lhere is evidence thct T<!tsutc , the wcr den of Kio.ngwan, re­ceived his or ders fr~u the heed of the Mil.itnry Prison in Nnnking, thnt Ki~gwo.n was n bra(lch of that prison. Nevertheless ther e is substcntial evidence t hat the hcadqunrt ers of

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the 13th Army issued orders and instructions to him from time to time concerning the fliers (Def. Trans. Ex. #l2J Pros. Trans. Ex. #28; Pros. Trans. Ex. # 27; R 441, 459, 463, 470). Even though sawada•s wrongful acts or 00\iasions may have been the result of his crilW'iMl. 11egligence rather than design on his part, this dGee not/ affect the finding of his guilt. In the Yamashita c~ it was held that a Commanding General has -~ " the affirmative duty to take such measures as are within his

powers to p~otcct prisoner3 of war from violations of the laws of war,> Nor can he be relieved of the responsibility for his war crimes on the ground that higher authorities issued unlawful orders and conmitted other l'lrongful acts against the Americans who should have been accorded the rights of honor­able prisoners of war.

Okada was a captain in the Japanese Army. Though not l egally trained he had been a scholar and a teacher prior to the wa~ and therefore must be regarded as above average in intelligence (R 401). He acted as member of the tribunal at the illegal trial of the fliers, having been appointed a judge by the 13th Army (R 402). As such, he had the authority or could have insisted on the right to use his own discretion and freedan of conscience in detennining the guilt or inno­cence of the Americans. He testified that the accused Wako told him that it wasn 1 t necessary to have additional evidence from Tokyo (R 420). He admitted that it was impossible, from the evidence before the tribunal, to determine the identity of any American plane which may have engaged in unlawfUl activ­ity on the clay of the raid (R 419). He said there were no witnesses at the trial and that the only evidence was certain statements purportedly secured by the Gendarmerie in Tokyo, r elating to some damage to non-military targets and con­taining admissions as to bombing of non-mi.J.!tary targets allegedly made by the accused American fliers . .Further he admitted that ho read and discussed sane of the evidence be­fore the trial (R 422). Manifestly this was improper .

Assuming that there wer e present at the Japan­ese trial the Jl¥3nt ioned alleged statements of the fliers, no question was raised as to their authenticity. Neither Okada nor W'\Y other member o! the court showed the least inter est in identifying the finger prints or proving the signaturos on such admissions (R 417) or in ascertaining the circumstances under which the purported statements had been secur~d by tho Gondarmerie in Tokyo.

Okada knew the fliers had no dof onsc counsel yet he never attenpted to protect thoir interests for thtmi or showod tho l east cor.cern over their rights. He could under­stand English yet ho didn't aid in any interpretation. He observed that Ha.l.l.mark was ill and obvioUBly unable to under­stand what was taking placo yot he did not protest or ask that the proceedings be delayed. Ho was l!.v1a.rc of the paucity of evidence and the short period of time the trial took. He had no reasonable gr ounds on which t o hold that eny one of th~ individual fliers pres ent bdforc him at the proceedings

28

was actualJ.y one who had released any bombs on non-mi.litary targets during t he Doolittle raid. Even i f a plane did re­lease bombs which struck non-military targets, as accidentally could have been the case, there was no proof that any of the eight captured fliers that he sentenced were in such plane . Okada was av1are that the fliers had no previous notice of their trial, and no chance to plead or be heard in defense. As one o.f the judges of the Japanese court, by denying them all such obvious and reasonable rights and sentencing them to death, Okada violated both the ethical and legal principles of inter­national law.

Vlako, then a liwtenant in the judicial depart­ment of the Japanese Arm;y, also acted as a member of the court that conducted the unfair and unlawful trial. ije not only !'unctioned as a judge on the court, but bocause.. the judicial section of the 13th Army was r equired to have one of its members on the court( he acted also in the capacity of its l egal adviser)(R .300). All the wrongful acts and omissions of the accused Okada apply equal]\y to V/ako 1 but because of Wako•s logal training and assi~nt he is even more blame­wc1rt.hy than Okada. \'/ako was a lawyer and, as a result of his legal training and his assignment to the 13th Army's legal section, ho either knew or should have known that the "Dl~ Air.men's Act" was !! ~ facto and enacted for the specific detriment of the eightfliers. He was Wonned on 15 August 1942 that the law would be sent down from Nanking (R JOO). As a member of the legal section of the 13th Ancy he "super­vised messages, r eceived documents, brought documents to higher ranking officers for their approval and •chopa• etc. 11 Also, he acted as prosecutor and judge on the l.3th Al'D\Y'S tribunals, and 11indoctrinated11 others on l egal matters (R 377). As in the case of the others, whether Wako • s acts or omissions wer e tho r esult of design on his part. or his crindnal nogligenco, he was pr operly f ound guilty thereof under the l aws of war.

Tatsuta, as a civilian attached to th0 Japanese ArlD3 with assimilated military rank, was tho warden a.nd chief of guards of Kiangwan Military Prison and as such had the responsibility for and exercised direct supervision over the imprisorunent therein of the American fliers (R 459). He previously had long service of this nature with the Arrey which fact undoubtedly influenced the freedom of action permitted him. From hia long experience in prison work, Tatsuta knew or should have known that although short periods of solitary confinement \'1ith concurrent deprivations such as reduced food allowance, etc. may be inflicted on prisoners as penalties for their misbehavior as prisoners, ~, protracted treatment of this nc.ture violates moral law as well as jural law and manifestly violates the l aw of nations where those mistreated are prisoners entitled to the protection of such law.

It is in evidence that KiB.116nan was a branch prison of a l arger mi~itary prison at Nanking and that the Comnanding Officer of the Nanking prison i ssued orders and instructions to Tatsuta fr0iu time to time. (R 549) . The

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Coa:mission so concluded. Nevertheless, there is also substan­tial evidence that Tatsuta r.imself was permitted to a.1d did exercise a high degree of authority at Kiangwan as its chief of guards and V1arden (Pros. Trans. Ex. No. 26; R 69-70, 462; Pros. Trans. Exs. 31, 32, 33) . Under him the fliers were incarcerated in solitary confinement in cells 5' x 9' for a period of seven months. The Military Commission's members inspected the cells. His rules prohibited their talking, standing up or moving around in their cells (R 68). The cells were not furnished with beds or chairs and were never heated although often the inside temperature was freezing. Tatsuta himself stated that he had heat in his own room in the priaon (R 465). The fliers were only permitted short periods of exercise on certain ~s; they were denied proper food and sanitary facilities.

Tatsuta saw what Bridge House confinement had done to the fliers when they were transferred therefrom to his custoc:tv at Kiangwan,. He, however, never protested when Hallmark who was obvioU3ly ill was sent back to Bridge House, probably because Kiangwan did not have even the facilities that Bridge House had, or because he didn't want Hallmark to die on his hands. On the arrival of the fliera he observed how weak, dirty, unshaved and unkeq:>t they were, yet he continued to deny them proper treatment. When they left his custoc:tv for Nanking in April 1943, all were still in a weak condition (R 70). There is no evidence that, it he was unable to pro­vide than with proper facilities 1 he ever protested to higher authorities about it. On the other hand, it is contended by the accused, that his acts or failures to act were done or not done pursuant to superior orders (R 549). Tatsuta denied the seven flier s not only the rights and privileg~s of honorable prisoners of war but even the minimum rights of convicted war criminals. The fact that they were illeeally convicted and therefor should have been afforded the rights and privileges of honorable prisoners of war makes their tre.atment more blameworthy if Tat suta knew or should have known of the ille­gality of their conviction.

As to Tatsuta •s part in tho unlawful execution of three 01' the fliers, the evidence shows that in his official capacity as warden he was designated as t he axecutioner by instructions issued to him by others (R 459) . He was directed to make all the preparations for the executions, including plans to car~J them out and 11clcaranco of tho execution ground8 arterwards 11 • (R 462). He carried out all the instructions taking an active part in the execution. Although the firing squad was under the direct command of a Lieutenant Tazima and it is not clear who actually gave tho command to fire, Tatsuta was present and participated even to the extent of binding one of the fliers to a cross to be shot (R 474).

The record indicatos hat the writ o! execution (R459) or the or der rTatsuta received to carry out the unlawful sen~r,nces was of appar ent l egality, that is to say, on its tace"appeared t o be l egal to one who neither knew aotuall~ ~or was bound to inquire whether the order was in f act illegaly

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However, being issued as a result of an illegal trial proceed­ings to effect illegal sentences, the order must be regarded as actually illegal. The evidence proves that the writ or order was illegal. Thus the question arises whether there is evidence in the record that justified a holding that Tatsuta either knew or should have known that the writ or order was not proper or legal.

Vias there aeything in surrounding facts and cir­cumstances or in the writ, instructions or execution order that Tatsuta received which he should have investigated or questioned? Was there any guilty knowledge that he had or should have had as an ordinary reasonable individual of his grade, experien~e and status as warden and official execution­er, which knowledge should have been notice to him that the carrying out of the execution would be improper or illegal under the laws of war? If the evidence indicates that the answer to either of the foregoing questions is in the a!fir­mati ve then Tatauta•s action as executioner in this case must be regarded as illegal and the Commission•s ruling there­on should be upheld. The Commission found him guilty of the charge of unlawfully acting as executioner yet in its con­clusions seecaingl.¥ indicated that he had neither actual nor constructive guilty knowledge that the order he recei,red or his acts as · executioner under it, or otherwise, violated the laws of war.

It is true the record shows that. Tatsuta visited the courtroom for a short time VJhile th9 so-called trial waa ·"' I i ii , ,_ ._..,.,

un~ and ~ he observed Ha] 1 mark·~~ sick condition {a 467). LikevJise it is apparent he could have ol>served other indica- "" "" ,_ _,, tions of the unfair trial. He was no doubt aware th~t the /", ~ ~" entire proceedings lasted only a ver-1 short time. It might ' be presumed that the Tokyo raid and its immediate aftermath of threats by the Japanese, of execution of all captured participants was so publicized that Tatsuta because of his position and his knowledge of the unlawful treatment render-ed the American fliers, both before and during their confine-ment under him, had notice that their trial and execution likewise might be wrongful.

It is the opinion of the undersigned, however, that the evidence in the r ecord as distinguished from probable fact and conjecture, does not warrant approval of the Com­mission •a finding of guilty of the charge against Tatsuta of unlawfully acting as executioner. (Specification l). Apparently, he acted officially and lawfully in many execu­tions prior to that of the fliers. Although it is not shown that he had executed other Americans, the fact that the persons he was to execute were Americans is not deemed of itself sufficient to be regarded as notice of possible ille­gality. Nor is it believed that the other mentioned facts that were considered in the foregoing paragraph are strong enough to indicate either actual or constructive notice on Tatsuta•s part of the illegality of ~ije D'l011\Y Airmen•s Act, the trial under it, or t he sentences, adjuc1god at the trial. ~ '!he evidence of the manner in which he performed his duties

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in coMection with the execution under the \'lrit does not in­dicate that he acted in bad faith. It is true that the record shows that Hallmark was still not entirely recovered from his prior illness at the time of his execution (R l;.71) but no animosity or cruelty on T.- tsuta•s part is establiahed.

f. Sentences:

In its "Conclusions" the Commission indicated t hat although the !our accused J -p.:-nese wero guilty of the offenses as noted in its "Findings", t here ,·1orc mitigating or extenuating circumstances in their favor in thnt they exor­cised little initiative in committing their crimes but acted largely in obedienco to o~dors of others, including high governmental and military officiols. Accordingly, the Co.m-

r mission, apparently in consider~tion of the previously men­tioned "c!octrine of superior orders", l eniently sentenced the accused S:-.wada, Okada and T.~ tsuta to five ( ~ ) years confine­ment at hard lr:ibor and ~Tako to nine ( 9) ~roars, although they

). could have bc:cn given death sentences . Probobl~ Hako was given four years moro thnn 0!>-..ada., though both committed siJ;dlar of­fenses because of 1'12.ko's having had l egal training and having

~taken a more active part in the unlawful trial procoodings.

The l altful ruaximum sent ence that may be imposed for conviction of cny wo.r crime is donth, although a l essor peru:Uty is discr ctionnry. (Par. 357, Fm 27-10). All tour accused in this case were l~\lfully convicted of rtc.r crimes but, cs proviously mentioned, t he conviction on one specifi­cation of 11unlmrfulJ..'.' acting as exocutionor" against ·r~tsuta doos not ap~oar substantiated by tho evidonco nnd should bo disapproved. Even so, Tatsuta•s sentence and those of tho other nccuscd nre l egal and as they cannot be increased by tho reviewing nuthority, it i o t ho opinion of tho widersigncd thoy should be approved.

It further r.ppoars that tho menbership of tho Commission by a\·mrding such extremely lenient ood inadequate penalties committed a serious error of judgment. Although tho Commission had discretionary powor in t his regard and·

.. concluded that ther e were mitignting circumstances, e . g. , "obedience to orders nnd pm-tially negligent rat hor than

....._compl ot oly intentional conduct, it is clear thr.t r.hon t hey found the occus1.1d guilty of the cr.pital offenses of mistroot­mont and murder under the l aws ' of nar, the penalties should have been commensur:-.t o with such findings. It is truo thnt punishment of crinos under tho l mt of wo.r should not be under­taken in a spirit of revenge ~s tho principcl. objective of war cri.m(.;s trials is the dctcr re;nt fcctor involved. HoYtcvcr, fivo Md nine ye.:ir sentences for guilty particip~tion in tho persecution ~d murder of cr.pturod l c:mful coabr.tants clo~ly should not bo reg:-.rdcd c.s r.dequc.te doterrento .

0:: t ho oth0r ~1nncl, :-.s tho principt.l issues of tho vory case it we.a t.djuclging involved the illegc.l pori'or­&l..'\llCO of judicil'.l functions undvr the L".ns of n.:-.r b~· the nccusod, .-.nd with f eu recorded precedents ~.vr.ilo.blc , tho

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Commission membership no dcubt was pa.rticu.lar~ conscious of its own obligations in thia regard. According]¥, it is per­tinent to note that ii' an error o! judgment was made, then COntr&ey to the Japanese ideas Of justice aJ'¥1 humanity I the Camdssion favored the acoueed 111 th all the benefit.a thereof.

g. Interlocutor;y questions:

"'At · tho time of the arraignment two motions by' the prosecution, one to dismiss the allegations contained in specification 7 agairuJt Sawada and the other to amend the allegations contained in specification 2 against Tatsuta to include additional. particulars, were not objected to by the defense and were properly allowed by the Commielion. Several other interlocutory quost.icns were raised by the defense <br­ing the course of the trial and were properly decided by the Commiseion, ae indicated below.

~

The defense entered motions to dismiss the charges againat the fair n.Qcused tor lack of jurisdiction by the Oom­miaaion al.le~ (1.i) that the Commanding General mo appointed the Ccmmission uas l'lithout the legal author! ty to do eo a.a be received it fran the Joint <Jliofs of stat!, who in turn had no jurisdiction to appoint military commissions in Qd.na; (2) that China had jurisdiction superior to the &j:lpointing authority and had not wn.ived it by any governmental act, and (3) that ~re administrative acts of local Chinese agencies could not grant the Rep.tblic ot China's consent to a foreign pol'fer to set up nt.,rritorial courts" in China~ These motiom to dismiss for lack of jurisdiction v1ere ;p41..._ overruled. In offect they nere special pleas to tho jurisdiction of the Military Ocmmission and the contentions of the defense in thia case differ lit tlo from those l~hich were overruled in a pre­vious ''ar crimes trial held in Shanghai, Qiina bofore a United States Military Commission which ruling was approwd ·by the revie11ing authority (Sao p. 19, Review of the Record, United states v. 14asatajS,! K.'l.buragi1 ot al., 21 A.oril 1946).

llilitary Commissions are not nterritcrial courts". Aa war c01rt.s for tho tr1al. ot war crimes 1 they have no territorial limitations undor inte rnational. law. <he author­itative statement of tho rule is that it is uell established Wlder international law that the laws of war permit a bellig-8rent ccmnander to punish by moans of his military courts my hostile offender against tho laws and custcms of liar who may fall into hia hands wherever be the place the crime wa.s com­mitted. (Soe Parlimentary Debates, Lords, Vols. 124, 555, 564, C!. Statement of Lord Chancellor Simcxl. · I d.., 578-579; and other citatioM in Gllleck,!!£:£ Criaj.nal.s 1 P• 205). The Supreme Court. in the ~ntioned Yamashita case, supra, stated:

"SUch a Commission LJo try offenses againet the laws of r1aiJ may be ap90inted by an7 rield commander, or by any conmand competent to appoint a general court-martial ***". ( 66 S. et. • 34 0 ,345) •

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It follows tho.t the power to appoint Jtilitary com­missions to try war crimes under intern..'\tional law was vested in the Comna.nding General of the United Ste.tea Forces, China 'Iheater, t'.lld in this regard there was no need for additional authority from the Joint Chiefs of Staff. Likewise, as such commander also had general court--martial jurisdiction he hnd thereby the i•ight under military lAw to exercise his power ot appointment ot milito.ry co.rmdsaions to try war crimos. Man­ifestly, if the law of war authorizes the power to be in such co.mmDJlder it also o.uthorizas it for higher authority. Thus the Joint Chiefs of Staff, the highest military authority in the United Stat es Forces next t o tho Comrunnder - in- Chief certain­ly wo.a vested l'iith it. However, the specific directive to the Chizw. comnwider from the Joint Chiefs of stu.ff, obvious}¥ was not intended to delegat e a power t hr.t the Coamanding General. of the United Stc.t es Forces in Chinll already had. RAther it Wl'.S the exercise of n coll11Ullld .function by the Joint Chief a of staff for its own reasons of policy t o limit the appointing authority in China to the single United States militm-y ccmnander for the trial of certain cases, including this ca.so.

The o!fenses involved her e wer e colililitt~d in enea:ij"-held territory of China during active hostilities ruid the appointing o.uthority wns the supr emo cGmiWlder of the United Sto.tes military forces in ChinD.. In an active theater of war the Americrui forces had aa a pri.nulry mission destruc­tion of the enemy. Although at the ti.Joo of the triD.l. active hostil.itics had ceased, the r esidual. milito.ry objectives ot the United States forces were still in existence.

11 'Ihe triD.l. nnd punishment of an cnell\Y canbatant who commit s violAtions of tho U-.ws of wnr is a part of the conduct of wo.r. Tho war power, Wlder which the liilitary Canmission \'Ills authorized to act, is not limited to vict ories in the field, but includes the inher ent power to gu\'.r d age.inst iJilnodi.o.te r enewal of conflict end to remody t he evils which military oper at i ons hcve produced. Tho cessction of hostilities does not preclude the tricl. of war crililinals by a milit ary ooJDIJOi.ssion prior t o the signing of o. pcaco t reaty or t. pro­cllllllAtion of peace." (Yome.ahita v. Steyer, supr a).

The United stctes f orces h~ve been present in Chinn at the invit~tion of the Republic of Chinn cs nn allied force t o aid in the active prosecution of the war o.gainst t he common enemies. During the progress of active hostilities, ns ht:l.8 been pointed out, American military per sonnel , ns well as Chinese, hcve hnd the l awful duty ot destroying the enemy. As such, under internationo.l law, tho United States frien~ visiting force has all the power :ind authority--or jurisdic­tion in a gener al sense-necessary t o t he accor:iplishment of its mission. It has been o.uthoritct i vely st ntod t hat uany public armed force, what her on lnnd or sc:!, lfhich enter s the territo~J of another nntion with the l.:ltter•s pcroission

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enjoys an extra-termtorial statua 11 (King, ~urisdiction £!!!: Friend;ly Fo_reign Armed Forces, 36 A.J.I.L. 539, 541). There­fore, unti l such invitation is expressl.7 withdrawn by China or until the mission of the United States forces in China has been coapleted and they have departed, sucl1 jurisdiction necessarily including the right t o exercise residual war measures is still vested in the ooownnder or the United States forces in China.

'lhus it follows that as long as the United States forces are legally in China carrying out a mission against the common enelI\Y, they carry with them the inherent right that attaches to legitimate military canmands, n&J&lely, the authority to take such action as may be necessary to execute their mis­sion. Here, part of that l egiti.Iilate mission, recognized by international law, is the punishment of violators of that law.

The matter of f:lxtra-territoriality does not apply to this case, being appllca· ie only to questions of jurisdic­tioh of a nation over its citizens r esi dent in a foreign country. (Hinckley, American Consular Jurisdiction in the Orient, pp. 86, 115; In re Ross, 140 U.S. 453). - -

Motions to sever were made by the defense on behal.t of each accused and after argument thereon the Commission denied all four motions. The defense contendbd that a common trial of the four accused with no conspiracy being charged would be prej­udicial to each. Although all f our accused were tried for separate off~nses in a common trial there is no indication that the defense of any one accused waa antagonistic to the others. Tl1eir several crimes wer e all connected by a unity of time, m&ru'ler and place to one transaction involving a series ot events to which the material evidence was comt:10n. Thus labor, time and expense wore saved by this singl e trial. It is apparent that each accused was accorded all necossary individual sate­guards . The motions Ylere proper:cy overruled.

Defense moved to dismiss specifications l, 2, 3 and 5 against sawada for failura to state violations of the laws of war, and notions separately on behalf of Okada and Vlako tor bills of particulars to expl ain the meaning of a certain phraseology in the specificat.ions to th~ charge against each. In the opinion of the undersigned, the motions were properly overruled. Defense counsel st.a.tad in substance that as t o the l atter motions on behalf of Okada and Wake, they were made chiefly 11for the record". In regard t o all three motions here mentioned, the canments alreadJr made in this discussion on the f orm and substance of the charges (par. 3a, su~ra) are per­tinent.

Moti ons for findings of not guilty made severally in behalf of the accused were argued but denied by the Commis­sion. Such rulings are deemed proper. "In the absence of any statute or regulation governing the proceeding of military cC¥n­miseions 1 the same are commonly conduct ed according to the rules and forms governing courts-martial." (rlint hrop, Military ~ ~ E,_recedent3, p. 841, 1920 Reprint) . The regulations

JS

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~overnine these tri.cl.s as published by the convaning authority (Pros. Trruis . Ex.. #3) ore silant on the rule c:;0v crni.ng D otions for findirl[; vf not ~uilty but the !.Jlnuc.l f or Courts-liD.rtial, United Sto.tes Arm.y, 1928, states tho rule in p3rtinoot pnrt e.s f ollows:

11The court itill detonnine th0 n1ctter cs nn inter­l ocutory question. If there b~ any substnntUll evidence which tot;cther with nll r easono.ble in­f erences therefrom ~nd all o.pplicnble proswnptions, f a irly t ends t o establish every olor.ient of c.n of­f ense ch~gcd***tho motions**lfwill not be ....;ronted. 11

(U::~, 1928, pc.r. 71 d.).

Finally, t her e seems no r eason t o hold that the Canmission•s decision t o deny def ense's motion that the Com­mission mll.ke specific f in<.ti.n.:,s of fact in r~cord t o ooch n.ccuscd VJlls pre judicial t o the s everal nccus<.>d . Tho Coamis­sion exorcised the: discretion i t h..; d in this r egnrd. As l1

matter of fact, the "Conclusions" of t ho Comuission were oppo.rently n substitution f or such findi~s of fact.

5. Clemency:

In view of the comments expr.Jssed above on the leni­ency of the Ca.w:ission in o.wnrdint; c.ppc.rently i11Z1dequate sen­toncos, no r eason exists f or further action in the nature of clemency by the reviowinG authority.

6. Opinion:

In sUDllllllry, it is the opinion of th0 w1dersibne<l that:

a. The CorJID.is sion mis l ci}ally constituted;

b. Tho Canmi.ss i on hc.d jurisdiction of t he persons and tho off ens es;

c. In nil but one lXlrticul.:ir t he evidence supports the findin(;;s of t:,-uilty. Tho one pnrticulcr i s the findin& of guilty of specification No . l wider the c hc.r c;c .:igainst the o.ccuscd T~tsutc. For t he r oasons s tated in paragraph 3 a ., supra., this fin<lillG ohould be disappr oved;

d. Other tl'Wl t hli.t indic .tcd in t ho pr ec cdine sub­pero.cr aph concern~ Ta.tsuta, tho r ecord discl os es no errors injuriously nffcctil'lL the substc.ntLll r ights of the accused;

e. The s entences ns imposed by the Conmission o.re

7. Roe ocunendt>.tions:

No r eo.son for .:iny cha~\3 in the s entence adjudged aenins t Tat suta being wnrrantcd because of o. di snpprovnl of

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the finding of guilty of Spocificntion No. 1 of the ch~rge ago.inst hir.1, it is accordingly r ccommendod thr.t tll the sentences be o.pproved and order ed executed.

s. Action:

Under your authority you are er.powered to npprove and execute ~.ny sentences adjudged, including the deo.th sentence. An action designed to carry the torogoing r ecommendations into effect should they moet with your approval is subnitted here­with.

Hq, ChiM Service CC¥lm2.nd, /\PO 908

A CERTIFIED TRUE COPY:

/ . / . ~ . // ~ __.....-J.~·~L. BOUS N :/ .-c.­

/ Lieut. Colonol,AGD ,.. Adjutcnt Gencrol

J7

s/ Edwa.rd H. Young t/ w ·:ARD H. YOUNG,

Colonel, JAGO stnf f Judge Advocate

s/ Joremiah J. o•connor t/ JERElUAH J. O•CONNOR,

Lt. Colonel, JAGD Deputy staff Judge Advocate

s/ John W. 1lo.rtin t/ JOHN H. MARTIN,

2nd Lt. , JAGD Asaistc.nt staff Judge Advocate

-

NANJ<HjG HF..:10CU/JiTERS COMMAND

I Aro 909 24 August 1946

In the foregoing case of Shig~ru Sawnda, Lieutenant General of t he J apanese Imperiol. Army, the sent ence is approved and l'dll be duly executed.

Ward 1ioad Jni1. Shanghai, China, is designat ed as the tanpor~ry place of confinaaent until such time DJJ o permanent pl ace or confinement is des i gnat ed by compotont authority.

s/ .'h C. Gillem, Jr. t/ A. G. GILLEM, JR.

Lieutenant General, u.s. A.

Hq, China Service Conmo.nd, J.J'O 908

A CERTIFIED TRUE CX)py

~· . ~~ .

~J.J, / (' ~) .7'--7- ·' t''--<-A- / ·~- '-~-"' / SYLVIO L. BOUSQUIN /

/ Lieut.Colonel, AGD Adjutant Genertl

Comanding

. I I

NANKING HE!11X~UARTERS OOMMftND

I Aro 909 24 August 1946

In th~ foregoing cese of Shigeru Sawada, Lieutenant General of the Japanese Imperial Army, the sent ence ia approved nnd vdll be duly executed.

War d Hoad Jail. Shanghai, China, is desi gnat ed as the tEJ'llporary place of confinement until such time aa a pC;trmanent place of confinement is designntod by compot.ont authority.

s/ .'l. C. Gilleru, Jr. t/ A. C. GILLEM, JR.

Lieutenant General, u.s. A. Conmanding

Hq, China Service Comnand, hPO 908

A CERTIFIED TRUE COPY

/ •I • v?~ ' ,:ri'l.J, / ~./ ?-/~I ('~ / ?-' ..... - '-/ ,,- ' YLVIO L. BOUSQUIN /

' Lieut.Colonel, /~D Adjutant General

~---- - -

NANKING HEAIQUARTERS COMMAND

/

APO 909 24 August 1946

In the foregoing case of Yusei \Tako, Lieutenant of the Japanese J.mperial ArIII3, the sentence i s approved and will be duly executed.

Ward Rood Jail, Shanghai, China, i s designated as the tonporary place of confinement until such t:iJne as a permanent place of confinoioont :la designated by competent authority.

Hq, China Service ColilllMd, APO 908

/ s/A • . C. Gillem, Jr. /t/A. C. GIU..W, JR.,

Lieutenant General, u. s. A., Coamanding

-- ·- -- - -

l·: .':NKING HEADQU.iRTERS COMMAND

~ 909 24 ~st 1946

In the foregoing case of Ryuboi Okada, Cnptain of the Japnnoso Imperial. •'\rn\Y, tho sentence is :!pproved end will be duly executed.

Ward Road J.~l, Shanghai, China, is designated as the tomporary place of confinement Wltil such time cl8 o permanent place of continem~nt is designated by compet ent authority.

s/ .\. C. Gillem, Jr. t/ i\ . C. GILLEl(, JR.

Liwtenant General, U.S.,\. Comnw.nding

Hq, China Service Conmand, APO 908

:t COOIFIED TRUE COPY

~,_:,.-d/?,---7 - - · 7sfi.Vio L. BOUSQUIN > Lieut. Colonel , .\GD

Adjutant General

/ )

lUNKING HE:J)QUARTl!:RS CC.' lliND

APO 909 24 August 1946

In the foregoing case of Sotojiro Tatsuda, Cuptain of the Jnp.'.lnese Imperial Army, the finding of guilty of Specific­ation 1 of the Charge is disapproved, the sentence is l~pproved ~d will be du.ly executed,

Ward Road Jnil, Shanghai, China, is designated as the temporary place of confinement until such time as a permanent place of con!ineme11t is designated by competent nuthority.

s/ A.C. Gillan, Jr. t/ A.C. GILLElf, JR.

Lieutenant General , u. S. A. c oounanding

Hc1 , China Service COJnm<.nd, APO 908

A CERTIFIED TRUE COPY

~~ ~· ::L;a._,,7~ / ..-t .......

~s!ivio L. BOUSQUIN , Lieut.Colonel., AGD

Adjutant General