The r e r cmo.in on1y rount s 54 c.nn S5 o.C: the indirtmcnt f or my consider-

ation .

Cotmt l54 r r~':'.rgo; s that the Q. l'lf"Used nmned the r e in

~uthcrized and !~rmittcd the (lOmmnnders- in-chief and other persons mentior.·

cd in Count 53 .!:.2 CO.llli!}j.,.:t the of<"cnsos therr::d.n mention,3d .

Count l55 nb::.r gcs thc.t tr e 1.ccused named thr r e in • • • beinr, by virtue

o~ the ir r esocctive off j(lc s r~ sponsible for se(luring t he obsorvnnnG of the

• • • r.onventions , assurnnres and the l aws and nus toms of \'i.:J.!' i n r r.:s')ect

of' n.rmcti f orce> s •.• . ".nd in r espect of • • • prisonerr of' war nnd rivilicr

then in tho pow<:• r of J r.pan • • • deJ ibe r nt ely and r r:ck l e ssl y di§J'~ded

their l ega1 du~: to t~e adequate steos t o sccu~c the observ~nr.e and pre -

vent bren~hos the r eof , ~md ther eby violated the l aws o +' Wt';r.

It may be noticed i n t his ccnnEH~tion thr.t in the indictment o.t the

~!urembo;r ,!5 Trial th2re wer~ no l"hnr ges corrcsnonrUl').f! to thoso conta ine d in

Count 155 of the indictment br.>fore us . 'rh0 nccused :.:.t the ~~uremberg Trial

wer e all charged 1•!ith hr-ving r.ommi tted some positive .:1cts of utroci ty .

Count 3 of t~a.t indictment cont.:1ined 11he r c;os r e l a ting to \7:-tr ,..rimns . In

the s tatement of t h<:- of'+'ense it w.:1.s charged thr.t nlJ. the de f endc:nts acting

in con,.c.rt ''li. th other s , f ormt:.la tr d and o::ocuted a common pl:m or cons pi roc·,

t o commit 'F:nr 0rimos . . • Thi s pl a n , it was charfed, invol vod thG ~o:nmis -.. sion of crimefl per pPtra.t ed . Th r sn.id nrrr crim<:! s wcr "' ollew::d to h::•.ve beC'n

c ommi ttcd by the de f e ndc.nts c.nd by othe r pc;rson~ f or v;hosc 'l.cts the de;-

f e nd.:1nts a r e r u;ponsibl<:- , o.s such othe r persons, ,.,,hen ~ommi tting the said

;·,a.r crimes , DPrf'0rmod thrir (' r.t in e xe cution of' n rofTlmcn pl a.n or conspirnc~·

- 1 , 0 1)0 ..

t o commit the: sr.irl rrar e rimes •..• Thr ,.. h~.rrr~G ·~r· thi s rGspe~"'t rel~tod

t o :

1i , Murdc'r and ill-trent mAnt c-f ~ivilio.n -popula tion of or in o~r!Upied

terri t r::r y nnr'l on the high seas;

B. De port:· tion, r-or slave l .ctbour and f or other purposes, of tho

~ivili c.n ncpulntion of a nd in O~"'~upi e.d t erritories;

C. ?.1urner a nd ill-treatm'9nt of pris oners of war, etc . ;

D. Killin~; of hostages;

E . Plunder of publi<" ar.d nrivat e pr opertie s;

F. The ex .qction c.f colle~ti vc penal tics;

G. t"'!anton destr uc tion of c-ities , t owns , etc . ;

~ . Cons ~"'ription of' dvilinn l abourj

I . Fm:·oi ng l"'i vili n.ns of oecupied t erri tory t o swear 'lllegian~"' e t o a

hostilt::: power;

.T. Gerrnaniza tion of O~"' ~"'upj c d ts3rri torie s .

In each case t he def endc:: nts '"~ere ~"' ho.rr:cd ·vith nositive o.~ts of

a trod ties .

The Tribunal a t i'Turember g , ther e "*"or e, had no o..,casion t o ~onsider any

nha r ge like the one conta ined in Count 55 of the I ndictment before us.

Those of the de f endants, i'lho ;-,•3r e f c-und f!Ui 1 t y c f v:nr <"r im0s , r1er e f ound

guilty of having themselve s participat ed in t he atr onious doings , as is

oh:t.r ged i n Count. % of the :i:ndietment bef or e us .

Ther e i s , 1.ndccd , some diffi<mlty in r coonciling Count 5S ···ith the

provisions of t he Chart e r . The Ch-;rte r lis ts .:; s ~rime only "vi ol ations of

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the l aws or cus t oms of v1ur 11 , It does not lis t a s "'rime "dis r egard 11 of

"leenl duty t o t a ke adequate steps t o se rure the observance of and to ore ­

vent t he breaches of" t he b .v!s of wnr. If Count S5 be t aken t o mea n that

"the dP.lib&r o. t e a nd r e cklE- ss disregard of l8~al duty " itself constitut e s

a ~rime , then thG crimc1 r. hr.r ge d the r e in would be outside the pr ovisions of'

t he Chnrter 'lnd as sunh, ;)Utside our .i urisdi~"tion.

The Count, hov1ever, rno.y be t o.ken c. s mentioning "delibe r a t e a nd r ccklcE

rl i s r ogard of dut.y" only a s evidentia ry condu~t whe r e upon the r c; sulting

viol a tion of t hE l a· . .~s o f' \'K~.r should be as~ribnbl<:. t o t he pe r son f'. ~barged.

The r-rime cho.ro;E:d i s t hF viol r~tion of the l o•:Js of war a nd the o.c-t mu s t

ultimat ely be brought horns t o the nccused named. Any disre P,r..rd of duty on

his part, if est abli s hed, Houl.d onlJr s uppl y soms cvirlenti ~ry f c.ct for this

purpose . 'fhc expre s s i on "::md th~reby viola t ed the l o.ws of war" in such a

case mould menn not tha t 11 the delibe r at e :::.nd r e ckle s s dis r egard of duty"

i tsclf amounts ·~o vi ol a tion of t he l o.."iis of ''lar, but t hat t h"· prOS'3CUtion

underta ke s t o r-s t rlbli sh the a"t of viol ation of t hG l av·s of' q.:.r to be the

,:J.(!t of th.:=) RCI'!Us 3d nnme d and it propose s t o de so by 'Q St ablishing n

partir.ulnr cond·1rt of the n.neu scd. 'fh~ ~uc stion nhethor t.he particuJ a.r

~"()nduct, if and 'vhc n rs t r..blishnd , doc ·s or doe s not e s t llblish the .f11r.tum

proba ndum, YJoul d r1l wn.y s \,)o f'or thr tribuna.1 t o d .:;; t r: r minc . Th0 char ge "Jill

not be es tabli s hed till t ho o."t of viol ::-.tion i s ·~stablishod to be t he net

of' t"lc a~cu sod.

Count 54 r Gf 8r s t o o~rc~l'!c s ~ontioned in Count ?3.

Count 53 ;,pc~ks of t hs frgauc nt and habi t ual l'!ommission of t he brenr. l:

- 1,052 -

of the lur:s and ~ustoms of ·::ar as ~ontaine.d in .::.nd proved by the nonvention~

assurnnf'e s and practicE"s ref~·rred to in Appendi x D, against

(J ) the armed fo:ree s of t he Muntrics named;

(2 ) the prisoners of w~r;

(3) civilians then in the powe r of Japan.

The c onventions, assurances and practice s that are re~e~ed to in

Appendix D are the fo1lo~·ling : -

1 . The practice of ci. vili?:ed nations.

2 . (a) Ths convention No . IV done at the Hague on the l~th o~tober

1907, ~oncerning the l~ws Rnd ~ustoms of war on land;

(b) The reguJ ~tion~ set out in t he Anne:" t o t he said convention;

((') Th2 convention No . X dono a t the same time and place concern­

ing :\1ari time fia·r ;

(d) The Geneva Red Cross Convention of 1929, being t he Inter~u­

tir·nal Convention for the Amelioration of th~ Condition of

The 'l.'cunded and Sick in Armies i n the '•' i eld, r'!one at Geneva

on the ~7th J uly 1929.

(e) Ths Geneva Convention of 1929 being the International Conven­

tion r el ative to t he Treatment of nrisone rs of War, done at

Geneva on the ?'7th J uly 19~9 , though not r c.tified, yrt a~cedc..

to by Jo.p:m within the meaning of its Articl e 95, as are­

sult of t he assurance s given as per r-ommuni~ations r eferred t <

be lm·1.

3. (a) The assur':l.nce s ei ven by Japan to th·" e~~e~t that

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. /

'ju t hough not bound by the Convention r e1ati ve to the

treat ment of Prisoners Gf ~'Jar, Jaoc.n will apoly mutati§ ,.

!!U:lto.ndi .) .

(1.) The provisions of that convention to American pri soners

of war. (Comrnuninntion ~ated the ~9th January 194?.:

Exh . 1490)

(B.) The ~ondi tions of that Convention to English, Canadian,

Australian end t!ew ·~ealand Pri soner s of War in their

pov.rer. (Communi"aticn dated the 30th .January 194<:

EJ":h. 1496 )

Japan, by this communi~ation, further assured that 'wit~

r egard to supply of food and clothing t o prisoner s of war,

they will consider on condition o~ r eciprocity national and

r~cial oustoms of the prisoners'.

(b) The a ssurance gj.ven by Japan in a "ommuni~ation dated the

1 3th February 19/~~ , in t he f ollowing t erms:

The Imperial Government will apply during the pr e sent

w&.r, on condition of recipro~ity, the provisions r el a tive t r

t he tr"lntment cf' prisoners of war of the ~9th July 19?9, to

~t~my civ.iJ.i~n i:qte rnee.§, n.s far as anplicable to them, and

nrovided that l abour will not be i mposed upon the'll ('ontrary

to their free choice. : (J:xh. 1491)

(c) The said communica tions constituted an assurance t o all the

n&.tions a t war ··Ji th J apnn other than the Republic of China.

- 1,054 ..

Th~~1J~Lill?..Bi i n bree.ch of t he 1a -~s an,.1 customs of' war are given

in fifteen se~t:.ons in Appendix D of the Indir.tment . They may be summa­

rized as f' o1lows :

1. Inhumane treatment, contrary to Article 4 of the Annex to t he

Hngue Convent i on IV of 1907 and the whole of t.he G~neva Conventi<

of 19?9 and the said assurances . Prisoner s of war and civilian

intern,:>es '1'/ere rnurdered, beat en, tortured and other1'1ise ill­

treat ed , and f emale prisoners were raped by members 0f the

Japanese f orC'e s .

?. . I l l egal employment of prisoner of war l abour:

(a) prisonl' rs of' war were employed on work having "Onnection

with t h0 oper rti ons of war;

(b) pr'i soners of ~'O.r ·- , ~;;;re employed on wor k for w~ich theY wer e

physically tm s:1i t ed, and on work which was unhec.l t "Jy and

danger ous;

(c) the du-ra tion o f' daily "/Ork vias excessive , and pri snn,::;rs wer e

not allowed re~ts of t wenty-four ~onsecutive hours in each

week;

(d) contiitions of nrork r!er e r endered m<"' r e arduous bv rlis<"'iplina r

measure s ;

(e) f:risoners wer e kept and c ompclled t o ·;~ork i n unhcal thy

dimatPs and dc.nger ous mn<'s , and \dt hout suf'ficient f'cod ,

clothing und boots .

3 , Refusc::.l and f'ailure t o maintain Prisoners of ·:~ar .

- 1 , 0?5 -

(n) In suprylying ~ood and clothing di f fr r once s in national and

radal ~ustoms ·ver e not arve rted t o . Adequate food and

r.lothing W8re "lo t supplied .

(b) The s trurtural and sanitary condition of the ca~ps and

l ['bour det achments f ull ed entirely t o ~amply ,·ri.th the

Regulation and \ms extremely bad, unhealthy o.nd ina dequate.

(o) ~1f£l sl-}ing and dr inking f acilitie s n:re inadequa t e and bad .

/+. Exnessi ve and illegal punishment of prisone rs of ''!ar.

(a) Prisoners of 1-:1<1r "7ere killed, beatr:n o.nd tortured v.d. thout

trLu or inv9stigo.tion of o.ny ~dnd, ~or all eged of'fen~e s;

(b) Such unnuthorized punishments w~ro inflict~d fo~ alleged

cffence r r.'l;i~h, '' Ven if -proved, .. ,erCJ !"ot under the <>C.id

Convent ions' offen~es ~t all ;

(~) Collc~tive punishments nere imposed for individual alleged

(d) Frisoners v1ere sentonce ci t o puni shment more severe than

imprisonment for thirty days for a tte:npting t o os cape ;

( e ) Conditions of the tria l of prisone rs did not no!1form to

t.hc se l nid dor:n in the said Che.pter;

(~) Condi tions o~ imprisonment of prisoner s sentenn~d did not

('0'1 f o rm t o the se l aid dO\rn in th0 Geneva. nonventj on .

5. Mi strE?a tment of the sick :md wounded , medicnl per sonnel end femal

nurse s .

(a) OPfir.e r s and soldier s li'ho v1e r e ·~ounded or ci~k , medi<'al

- 1,056 -

person..nel, ~"hapluins, nnd pC!rsonr' s l o+' volunt.:1ry aid

Sc r.ie t.ios v1er a not respo~ted or protented , but were murder­

ed, ill-treated and negle nted;

(b) Medinal personnel , cho.plui.ns and personnel of voluntary aid

Societies ·,vere v~Tongfully r etainod in Japanese hands;

(c) FemalE:- nurse s v:ere raped, murdered nnd ill-treated;

(d) C~.mps did not possess infirmaries, end seriously sick

prisoners and t.hose re:quir:l.ng important surgi~al treatment

VIE.re no t admitted t o milit::..ry or ,.ivil institutions qualified

t o trG2t them;

(e ) Mc ·nthly medical inspent::..c.ns were r.ct arran12ed ;

(f) Stck and \'!otmdf:d prisone rs ''!ere transferr ed nl though their

r E!Covory wns pr ejudiced by t.heir ,journeys.

6. Humilic.,tion of' prisoners of war, and t-spedally of'fiflers .

(a) Prisoners were deli bnrately kept and made to wo rk in

t 0rritories occupied by J npen, f or thP purpose of exposing

them to the insul ts and curiosity of the inhc.bit~nts;

(b) Prisoners in Jcpan and :tn occupied t erritori0s , including

officers, wer e c-omp'"lllcd to "rork en menial tr:.sk s and ex­

posed to publin view;

( n) Officer prisoners ":ere placed under t ho ccntrol of n<"'n­

commiss1.oned of+'inors and pri vatc soldiers and compelled to

s nl u tc them, t\nd to ··•ork.

7. Re+'usa:.. or f ailure t o c-ollect o.nd trar:smi t information r e'5urding

- 1,057 -

prisoners of wr.r, and r eplies t o e nquiries on the subject.

Proper r ecords wer e not kept, nor inf orma tion supplied as r e ­

quired by th£ said ilrticlcs, and the most important o-f? such

r ecords c.s ".'er e kept were deliberatcl y de stroved.

e. Orystru~tions of th0 rights of the Frot~~tion Powers, of Red Crosr

So0ir~ties, of prisoners of v:J.r and of the ir r eprese ntatives.

(a ) The r epr esentatives of the Protecting T)ov:c r (Sijit'Zerland)

v1e r-o r c;fu scd or not gru.nted p<= rmisf'ion to visit r:o.mps and

an~ess t n premises OC~UpiEd by prisoners ;

(b) Wh!m such purmi:-;sion r:as gr nnts d the y 'Yore not allo~·Jed t o

ho:Ld ~cnvorsution •;Jith prisoners ·:•ithout witness or a t all;

(c) On such o~co.sions ~ondi tions in ~anps '''er e dccepti vely pre­

uaJ•cd to r~r--c:e11r bett er th::..n normal, and prisoners were

thr6n t cnecl wi t h puni shmcnt if the-.:· complninr:d;

(d) Pri soners and their r epresentatives were not o.llm"lcd to

make compla ints as t o the nature of t heir "!Or!< or othe rvJise ,

or t o eorrs s pond freel y •·;i t h the mHi tary uuthoritic,s or the

Frc t ecting Power;

(e ) Red Cross parcels and mnil ·::err: ,.,i th"'1e ld.

9. Empl oying noison gas.

This o.llcgntir:n :!.s ~onfin:d t o the r1cnublic of China .

10. Killing ::memies who , f)uving l <dd dm·n their " rms or no l onger

having m:mns of d ef cnst:: , had surrc nd.c r c.d .

11. Dostrud:Lon of Enemy Property, iJithout militr..ry j ustifi0ntion or

.. 1,058 -

necessity1 and pillo.ge .

1 2 . ::;'o.ilure t o r0spe~t ~o.mily honour c:.nd rip,hts, individual life ,

priv.:1.tc pr operty and r eligious ~"Onvictions and ,.,or ship in o~~upic.d

t erri t ories , und deportation nnd ensl avGmcnt of th~ inhabitants

ther €of;

Lcr gc numbers of tho inhabit~nts of such tc.rritori8s were murder­

ed, tortund, raped c.nd oth&rwisc ill-trenteri , ::trr estod and in­

t 0rned ~~t~out Justifi~ntion , sent t o forced labour, und their

propc rty dcstroyr~d or ~onfi S ~"n ted.

13. Killing survivors of ships s unk by naval nction o.nd ~"rews of

"apturcd ships.

14. ?ailure t o r c sp( "t milita ry hos!_)ito.l shj ps and unlawful U'>0 of

., Jupr..ncse hospital ships .

15. Atta '!ks, and espec:dn.lly nttucks 1'lit hout duo war ning, upcn ncutrcl

ships .

Item 9 (Employing poi son gas) may at cn~c bo disposed of ns abandoned

ty the pr::>sc ,.ution . Jo evidc!'!c e t o subskntiate thi s ,.. hnrtzr. v1as r,dduned

a t the hearing.

Item 15 (Attacks wit hout due w11rning upon neutral ships) also was

nbo.ndoncd by t he prosecmti0n . On 8 December 1947, Captain Robinson f or

t he prosecution s t atGd i n CouJ~t th'J.t it has been brought out thrt in this

indi<"tmcnt "thcr G is no "hr..rgH of condu,ting suhmnrinc wc..rfarc us u. mattt:.r

cf sinking merchant ships v:i t hout vr~ rning ••• " (R.P . 34772) On the

ba.sis of t hi s sbt oment by the Prcnecution , ldr. Er aPnon f or tho Defenne

.. 1,059 -

wi thrlrew on 9 DE: ~<::mbor 194 7, Defense Dcv~unent i·.rc . ?1,.'24 purporting t o oon-

to. in the stu t oment of .:~dmir['.l Nimitz of the: U.S. •.ravy pertaining to

Ameri~an submnrjne warf~re in the Pncific. (R . P. 34819)

As r ep,&rds t he rest of the acts alleeed, the accused are sou~ht to be

made res~onsible for them on the allegation that they Qrdered, authorized

and E£rmitted treir commission .

The charge against tho present accused is that they ordered, author•

ized and pArmi tted t0e following persons to ~om:ni t the alleged offenses:­

(1) The commanders-in-chief of: the s~:veral Japanese naval and

milita~r for~es in ~ach of the sevGr al th€atres of war in which

Jnpar. "W.s then engaged,

(~) The off'icial s of the Japanese ::var fftinistry,

(1) The persons in ch~rge of 8ach of the camps and l abour units for

prisoners of war and ni vilian internees in territories of or

ocr.upied bv Japan, ' '

(4) The mititur~r ann dvil poli~e of Jo.p~m, and

(5) Their r espective subordinates .

-T=he==g=u=~=s=t=io~s t hat arise for our r.onsideration here ar e : - -= 1 . Whether the evidence adduced establishes th~sc ants;

2 . Whether the ev:ldence adduced esta.blishes the alleged r.onnection

of thE; accused tv2. th the s0 ants;

3. Whether these acts 0 1• any of them constitute a crime in inter-

national l aw;

4. ~Vhether in international l aw the n~cused or any of them is

- 1,060 ..

cr1.minally J i able for such C'rimino.l a rtf!.

refore pror. l31")dinl! to thr.:l evidenc-e o.ddu~ed in this case on this phase,

I VJould on~e a.go.:Ln utter a WOJ'd of cnution. Stories of war orimes gen-

ernte JJC.ssion and desir e fer '!engeo.nce. We must avoid all influence of

resentment . We rnust avoid all possible interferen~e of emotional -f:'aotors

and remember that we are hero concerned with events which oorurrod at the

time w~cn fighting wns going on . There is th~ soecial difficulty that L-;

the events c0our::-ing then ~~re likely to be wi tnossed only be exd ted or

pre.iudiced obsor7er s.

Purthcr, bGllie:crents, vtho during wer succeed in vtinning victories

and getting prisoners of wr:.r, arc liable to be credited with "ruclties

of the charartGr alle~ed in the present indi~tment and, if ultimately de-

:f.'eated, their ver~· de feat as it were e stablishes their most devilish and

fiendish oharaote r. ·:Jo are t old, if punishment doe s not strike bor e , it

shoulcl strike no·,'lhere . We must .:tvoid a.ny such f eeling.

In appraid·:1g the value cf' c:ny contemporary press r oport or the like

·.ve must not forget the pa-rt the proparmnda is designed to play in war-

time. As I ho.ve notice d nlrcnd;}r, :..1. sort of' vile ~ompeti tion is carried on

in exerting the i.magin::~tio:r. ns a r.Jec.ns of infuriating the· enemy, hsating

thr, blood of the sto.y-at- hcmeB on one 1 s mm side and filling the neutrals

\vith loathing and horror. I have g iven above some war c.trodty stories.

I might also mention the s t or y .o;i ven out during the First World V!::.1r about

the usc of dead 1:>odi e s by the Germans. The story vlill r emain r ecorded in

history as the cla.ssiQ lle of v1cr pr opaganda . Mr . A. J . Cuming, the then

- 1,061 -

-

political editor of the "News Chronicle", a.n influential and widely rlir­

culated daily newspaper of Engl and, in his beck entitled "The Press"

published in 19;,6, exposed the lie of this pi<::ce of propaganda and narrater

how it was utiljzed. He said: "In Parliament, on April 30th, the late

Mr. Ronald McNeil asked whether the Prime Minister wculd take steps t o rna}.

known ' as widely as possible in Egypt, India and the Ec.st generally the

fact that Germa~s were boiling down their dead soldiers i nto ~ood for

swine 1 ". When J.ll.r. John Dillon intervened tc ask whether the Government ho'

any solid gr ound for believing it, Lord Robert Cecil, Minister of Bl o0kade

replied that he had no inform:::.tion beyond the extracts that had appeared

in the Pross, but "in view of other .2ctions taken by the German military

authorities there is nothing incredible in the present ~harge against

them".

He added: 11 His Majesty's Government ho.s allowed the nir~ulo.tion of t

f acts a s they appeared through the usual r.hannels."

"The incident has now nearly slipped out of the public memory. The

British authorities tried to for get it ns soon as it h~d 1one its dirty

V'Ork. But it is still dimly believed in as a fad by many persons ~~·ho

r ead no denial s in the British PrGss and, like Lord Robert Cecil, suw

'nothing incredible' in the charge mQde in r esponsible papers whose h2ng

fide_2 they still artlessly trusted."

Mr • . John Basset Moor e , formerly u J udge of the Permanent Court of

Interna tional Ju stice writing i n 1933 sc.ys: "Ther e are , I believe , a f ew

- 1,062 -

persons who r ealize the extenT.. t o which :propr!.enndn has been used in

connection with intorn.:1.tional relati<'ns, • only this year a leading

English periodic.3.l has said; During the war the astonishingly e+'f'icient

British propagan::la service convinced the J'..mericans of so:ne of the most

bizarre fairy tales that have ever been devised. To this day most of the

populetion has n~t recovered from the alleged information which it then

swallowed whole."

We 0annot ignore t he f.'act th~t the nati ons of the present-day civiliz,

world no not always show much s~ruples in adopting a different standard of

conduct in their behc.vior in connection with what the~r oonsider t o l--e thej ,

national onuse, from what they follow in their private life . They feel no

scruples in devising "bizarre fairy tales" and spare no pains in making

peopl e "swallow the same whol e".

To add t c this , since the First World War there has been such n deman•

f or the trial and conviction of defeated warlords , that a sort of un­

conscious processes wer e going on in the mind of everyone who devot ed his

interest and energies t 0 ge t these pPr sons punished, These processes in

most oases remain unobserved by the r:onsoi.ous part of the personality end

are influen~ed only indireotly and r emotely by it. The r esult might be a

partial distortion of r eality. There Ylould al ways be some eagerness to

accept as r eal anything that lies in the dir9ction of the unconscious wi sh-

es.

The past hi story of propaganda would huve a very important bearing on

the present case, at l east when we would come to consider the l egal effe0t

- 1,063 -

'

of any alleged i-J.;uc.tion on t he p<.:rt of C."W of' th(' ac~"used. Even if it be

now est abli shed t hat during t he war •td.th ~Jhich ne ar e o.t present concerned,

these fo.ctors die not ~t all oper a t e, it "'ill still r omo.in a pertinent

consid'3r a tion v1he the r or not the '9ast axperience of wo.r-time propaganda

r1oulc 'be likel y t o influence the inclination of the mind of' the M~used

towo.rds ac11eptan <~e or r e j "lc-tion of t he several war-time s t ories of

o.trocitie s c oming , :1s they were, fr0m the he stile sources .

I might men'~ ion i n this connection the.t even the published acMunts

of Nanking "rnpe 11 could not be r.~-ccepted by the world w1 t hout some suspicior

of exaggeration. Rcf'erring t o the same incident, even as f ar 'bunk a s

I•'ovember 10, 1 93~ , Colonel Stcw::1rd {in the chair ) ::1t. Cha tham Fousa con­

sidered thc.t sue;, things as happened a t !IT3nking v;er c regr ett abl0 , but tha.t

he "~ould cast his mind back to 1900, nnd see that what ever v1as hr.ppening

nov1, it wc. s pro'Ja.blc tht the J apanese had l earned it from other nations" .

Referring t o t he same incidcmt, Sir Charle s Addis on that o~~nsion

~ould say:

11B0t·.7een t wo countries at v.'l:'.r ther e \,·as nl.v1ays a danger t hat one or

other of the nombo.to.nts •7ould s nek t o turn oublic opinion in his favour by

r r.>sort t o a ;.>ropaganda in whi.,h incidents, insepar r.ble alas ( t) from all

hostilities, ••Je r e mP.gnlfied end distorted f or the C"(pres:::; puroose of in­

fl aming prejudic0 a~d p2ss i on and obs~uring the r~al issues of' the non­

flict."

Th~t purpose like th~ nbovc mi[ht hGve oper a t ed on the ore sent o~casi<

a.l so 11annot be ienored c.l t ogether. I ha.vG n.lrc·~dy referrEd to some

- 1,064 -

instances Hher ein scro0 auspicion of distortion Po.!ld exaggeration cannot be

avoided, If we r:eruti.nize t he evidence about Fanking rape carefully,

similar suspicion would again be unavoidable ,

The two main v!itnesses of Nanking atrocities are Hsu Chuan-ying and

J ohn Gillespie Magee .

Dr . Hsu was a Ph.D. from the University of Illinois. His statement,

taken out of 0ourt, was sought t o be given in evidence in this ~"'ase. This

was ")rosecution document 1734. We disallowed this and ruled that he should

be examined in court. Accordingly, he was so examined. He was a r P-sident

of ~'anking and in De~ember 1937 w.:ts connected v• i th the Red Swastika Society

Mr. Mngee was a minister of an Episcopal church at ~!anking from 1912

to 1940 end was :in Nank:.ng throughout the month of De~ember 1937 and

,January and :rebruary 1938.

Both these 'ntnesses have given us horrible a~~ounts of the atrocities

committed at Nanking. I t is, however, difficult to read this evidence witb f\c, v'e ..

out f eeling tha t there :_. ~ heen distortions and exagger ations. I would

only poi nt out a f ew instl:'.nces t o indicc.te the.t it may not be quite safe

t o· arJcept the entire story given out by thc~e v1i tnesses.

Dr . Hsu gives us the following stories. I give them in his ovm

l anguage. He says:

1. "I see with my very eyes the Jap1.nese soldier r aping a nomo.n i n

o. bathroom, ru1d his clothes outside, and then a~terwards ~e --dis,...overed the bathroom door, and found a woman naked and also

- 1,065 -

2. "· . • VJe '''ent t o the " .:>.mp to try to get --to r-a tch t·•o Japanese

who r•ere r eported to be J.iving there. 1. t the time 'l:le r eached

the r e we saw one Japanese still sitting there, with a woman on

the cor::1er ann weeping. I told FUKUDA, 1 This is t h9 man v•ho did

the r aping,' ..• •"

3. 110n~e we caught a J apanese raping, and he was naked. Fe was

sleeping, because then "''e tied him ~nd we got him to that

police office . 11

4. "I know anothe r case where because of the boatman, he hanpens to

he a member of t he Swastika Society, he t old me this: where he

saw that too on his boa t, it happened on his boat. There was a

family of r 0.spectable people tried to r-ross the river on that

boat. f\Tow, in the middle of the water of the river, two Japnnese

soldiers ce.me. They found -- they mmt to inspect that boat;

where, on seeing the young women there, the young women and girls

the re, t wo of them, so they began, s t art8d r~uing rioht in the

eyes of their parents and one of their husbanns.

ttA.fte r r c..ping, the J a ;a nesc ns~{ed the old man in tha t family:

'Isn't tha t good?' /The r e his son, t hP. ~usband of one of the younr

women, he r-ot so ang ry so he be ,O'c.n to beat the Japane se soldler.

The old man cc.nnot stand such a thing so he knows tha t they ~·.rere

all in trouble so he immedia tely iumped into the river. Then his

"life , old y·ife, the mothe r of thu.t young man, shE> began to •vee p

c..nd " C!.TIJG out :::nd o.lso f ollowod her hus band. I forp.ot to say thr,t

- 1,066 -

i'lhcn the J o.p2nesc asked the ol cter mnn whether it is E;Ood or not,

he wanted the old man to rape tho.t young girl so all the ~irls -­

now I sc.v1 this -- t :"leV c.ll jumped into the river, So the whole

family jurnped into the river and o.11 drowned. This is not sel"onr·

hand story. This is a real, r eal c,nd r,enuine , e.nd v:e have , v1e

know that, the boatman h;:-.s been with us for a long time."

VIe may next t ake some instan~es from Mr. Magee 1 s eviden~e.

1. "On Der.crnber l f.th, I went with r,'~r. Sperling, a German member of

our CommitteP. , to the residentic.l ser.tion of t he city. It seemed

to us tha t ther l? were Japanese soldiers in every house after

v1omen. We went into one house . On the ffround floor r v1oman was

weeping , nnd the Chin~Jse there t old us she had been raped . They

said there was still another J apane se in the house on the third

.floor. I went up ther e and tried t o r,o t into the room that was

indi "<i ted . The dear '<as locked. I pounded on the door and

shouted and Sperling soon came and ,ioincd me. .\f t er about ten

minute s a Jaoc.nese soldier r.ame out l onving a womnn inside,"

?. . "I wc..s ~"a.lled t o nnother house, drove out three Japane se in the

~oman's quarters on the second floor; ann then the Chin~se there

pointe!d to n room. I rushed into the room, bursting open the

door ~.nd fou!!d a scldier -- t1. J n.panese soldier -- in the net of

rape. I drove l1im out of the room, II . .. '3 . "One VJoman that I ht.ve knovm for o.lmost thirty ye::trs, one of our

Chr istians, t ol d me she: wo.s in c. room ''lith one girl nnd then wher .

.. 1,067 -

the J a.pc.nese soldi er co.me in, she knGl t bef or e him 1 begging him

t o l eave the girl al one. Ee hit her ovP.r the head with the flat

s ide of' a bayonet and raped the ~irl."

I t ceems these witnesses ar.~epted every story t old t o them and viewer

eve~r case as a ~ase of r ape. Is it r eally so easy t o accept t he story

given by the bon.tma.n? There were only t wo Japanese soldiers. On the

other side, t here wer e the girls raped, their father, as also the husband

of one of the girls. Cf course, there was also the boa tman himself. The

entire family valued their honour more than their li~e. The whole family

subsequently did iump into t he river a.nd all killed themselves drowning. y Ot/'l.t ...

How 'Vith such a family could it be possible for the t wo soldiers ~

the girls "right in the eye s of their y.>arents and one o.f their husbands''?

Dr. Hsu did not see anything impr obable in this st ory. He could give this

story to us as ·. "r eal and genuine", because the boatman had been with t he

.Red Swastika Society f or n l ong time .

The other stor ie s ma.y nertainlv be o.0cept cd a.s instan~es of' mis-

behaviour on the ?art of the Japanese soldier s with the Chine se women.

But t h.e witnesses unhesitatingly nssert them o.s ~"ases of r ape . Even when

they f ound one soldier and one Chinese girl ins ide a r ocm and the solnier

was sleeping, the vii tness ~ould t ell us that oc went t o sleep after raping

and, while giving thi s stor y , the ''Jitness almost f elt that ther e could be

no doubt about ,,vhat he wus saying.

I run not sure i f we are not her e gett ing e~,..ounts o.f events vlitnl3 s sed

only b,, excited or pr e judiced observers.

- 1,0?8 -

If He pro~eed to we igh the evidenc-e ~".refully we shc.ll find tha t in

many ~ases the opportunity f or obse rving t he hepPening must have b~en of

the most fl re ting kind ; ye t the positiveness of the v1itnesses is sometimes

in th€ inv·::rso ratio t o their opportl'ni ty for knowl edge. In many ~uses ,

l·') the i r '1onvirtion was indu~ed only be- excito.bili t y whioh rx rh!lps served t o

c. r ouse ~reduli ty in them and a~tod a s a pursuasi ve interpreter of prob-

abili ti1s nnd possibili ties . All the irrel e vancies of rumours r~d canny

guesses l)e~3.me bidden under a prcdisposi tion to believe the ··wrs.t, creat ed

pe rhaps by the !::!motions normal t o the vi0tims of injury.

Xe~ping in view overyth~ng that ~an be said against the evidence

addu~ed in this c::ase in thi s r c spoct and making overy possible allowr.nce

for nroo:J.gn.ndn and exo.g~erution , tho evidence is still overwhelming that

Htrol1i tie s were ne rp'3 trated by tho members of the J::..panese armed f'or~es

against t ho3 civilian populnt:.on o f some of tho t ::- rritories orrupied by thr

D.s also ~1gair. s t the prisoner:> of ~·Jc.r.

Tb=:; question is how f a r the ·.1..-cused b11fore us ~an be made '1riminally

r esponsibl e f or sur.h nets. As ! hnve pointed out l:'.bove , the ch"'.rge c.g'l.in::

the s e '1rrused i .s

(1) tha t t hey ordered, r:uthorized and pormi tted ~ertc.in persons to

commit t hose a~ts end s uch persons c.r.tunlly Mmmitted them;

(Count 54)

or (<) th:.1t t :::ey deliber ately nnd recklessly disr egarded the ir l egal dut

to t c.kc c.dequ2.t e s t eps t o prevent the co'T!m ission of s uch crimino.l

nets. (Count 55)

i t should b :; r emembered t.hf\t in the majority of cases 11stern ,iustice 11

- 1, 069 ...

hc s already been meted out by the sever al vi~tor nations t o the ~ersons

charged Ylith h~ving P.~tuc.lly per petrated these ntrodous acts a long with

their immediat e sup<1 riors. We ha ve been given by the ryrosecution long

lists of SUr!h f!onvi~ts , The length of such lis ts g iven in eviden~e i s i n

no way in~ommensurate with t he devilish and fiendish 0harn~ter of the

alleg0d atroci t:.es. I believe no one will be able to nc11use any of the

victor nctions with any miste.ken cl emency towards :my of the alleged per-

petrators of all these f oul a~ts. These ~onvi~tions f!an, I believe, be

t aken as having suffic:i.ently quenched any resentment and sntisfied any

passion and desir e for vengecn~e ~enernted ~' such r esentment. Even a s

1acts of moral renonstru~tion 1 and as 'the menns by which t he conscience ,-f.LDAoer;-Ci-......'1

of t he world is :r • • ~ the dignity of the human race 1 , such t rial s

and convictions h~ve not been ina dequat e in number.

We may now aff ord t o pr oceed dispas~1onately t o see if the guilt woul<

r each these accused before us .

I ~uld f irst of e.ll consider the ca ses of atrocities c ommitted

against "the civilians the~ in the power of -Jr,pnn bel onging t o" the

various cormtrie s . For this purpose, I v.teuld prefer t o t ake up counts 54

and 55 to~ether.

The char ges ccver t wo diff erent periods as f ollows:

1. In r espect of £~trccitie s in Chi na the period is from 1?. Sept ember

1931 t o 2nd Sept ember 1945 .

2 . In res~~~t of thP. ~troc ities in othe r theatres of wr. r the period

runs fr om 7 De~ember 1941 t o 2nd Sept embe r 1945.

- 1,070 -

The eviden<Je of .::trocities r eally commenoes from the r o.pe of l!anking

!lfter the fall of thu.t city on the 13th December 1937. I would therefore

t c.ke the first of th8 above periods as ~ommencing from th[-).t date and sub­

di vide it i.nto ·~he f ollowing sub-periods:

(a) The period from 13 December 1937 to 6th De,..ember 1941.

(b) The period fr om 7 Der-ember 1941 to the ~nd September 1945.

It should be r emember ed that besides ~lleging these atro~ities gen­

erc.J.ly in Count 54, the prose~ution cho.rged some spedt:'io insto.n0es of sue!

ctrocities comm:ltted in China in Counts 4l5 t o 50.

Count 45 relates to the happening at Nanking . The period is given

there as "'m the 1 ':2 th December 1937 and succeeding days".

i1t that time o.c~used HIROTA wa.s the r.'oreign T,Jinister, KAYA, the

Finance Minister f?."!')d KIDO, t~1e Edu~ation Minister. No other £l.C'CUsed was i

the Cabinet at that time .

The c.rmy concerned wo.s t he Central Chino. Area Army of which ac~used

Ml!.TSUI wc.s the ~ommunder-in-Chie.f and accused MUTO wo.s the Vine-Chief of

Stuff. Aocused P~TA r eplooed General MATSUI us Commander-in-Chief from tr

17th February 1938. I shall ~onsider the Mnstitution of the Army in

further details l at er on.

So far , ther efore, !J.S t he No.nking In,.ident is concerned no other

eo~used oomes into t h8 Dir-ture . We must keep this cle~rly in view.

The next in~ident in China is the f c.ll of the ~ity of Canton , which

event took place on the ?.1st October 193e. Count 4n contains spe~ific

chcr ges of atrocities alleged to huve b~en committed ther e .

- 1,071 -

Of the a.~~used before us accused ITAG.l~.o.l(I wns the War Minister at that

time, KIDO wa s the Welfare Minister and ARAK:, the Edu~ation Minister.

Only these three ar:cused were in the Cabinet at that time.

The Ar r.Jy concerned was the Central China Ar ea Army as stated a.bove ,

of which HA.TA wc.s then the C.::>mmo.nder-in-Chief .

These ar e the onl y acnused who might have some conne~tion v·ith the

ctrocities, if any, committed the re. As I s~all s~ow presently, there is

absolutely no evidence of this Qlleged ntrocity.

The next instance of atrocities i s given in the indictment ns those

happening at the f all of the city of Hangkow .

Count 47 specifically r el a tes t o thi s inl"ident . The period is 15iven

as prior and subsequent to t ne 27t h o~tober 1938.

At this t~ne nlso ~c~used ITAGAKI, ~IDO and ARAKI continued in the

Cabine t as sta t 9d abow~ , and the same army wit h t he same Commander- in-Chief

was concerned with this event . As I shall indil"ate presently, I cannot

c.c~ept c.s est ablished any atrocity c.t this city, either.

These ar e the onl y three events whi~h c.r c spe~ific r>.l1y "har ged in the

indictment durbg the -f'irst sub-period nQJlled above .

While givi~g evidence , t he following instances wer e also introduced:

l. At tbe time of t~e napture of Soochow in !\iangsu Pr ovinr:e in

November 1937.

2. Insta11'"'es of rnurder and destrur-tion of houses in a village in

Hupeh ?rovin~e in 1937 .

3. Instan•~es of torture· and murder of ~i vilians in 1938, des~ribed

- 1,072 -

by Colonel Ki[mg , Judge of Chin~se i1~i ) itc.c:.·y Court for trying VJar

cri.min,1l s .

4. Insta.n~es of rnpe and murder in Peiping in 1940.

5. Ins to.nnos of' l o1:1ttna , burning and murdering of.' civilians in

Suiyuc.n ?rovinr.e ~ n 19/~0.

6. Instc..nnes of ar-ts of' r obbery and wanton destruntion of property

Qt Lic..ng Dung village in 1941.

7. Atrocities in t he village of SiTu Ti in Bing Chuang District in

Jehol Provinco in August 1941.

8 . During the Second Changs~ r.a.mpa ign in September 1941.

These nre all t he instnnces of atror.itics in Chinn during the period

preceding the Pncific: "far.

Some of thEl cnses of c.trocities in Chine during the t'a,..ific war a re

also spPcifina11y ~barged . These ar e t o be found in counts 4e , 49 and 50 .

Count 48 r elates to the atrocities Q1leged t o have been r-ommitted in

the dtv of Cho.ngshn . The dc.t e is given c.s prior o.nd subsequent to 18th

June 1944. As r shall show presently t he evidence about this matter is

anything but sa.ti sfnctor,y.

At that time the following a" cused were in t he C~binet: TOJ O, War,

Prime and Fome Nini ster, SHIGEMITSU a s Ti'oreign Minister, and SHI MADA as

Navy Minister.

Accused TOC·O neased t o be c. member of thc t Cabinet on lst Sept ember

194~ and acnused f~LYA ceased t o be a member on 19 ~ebruary 1944.

From Mar ch 1, 1941 to November ~.2 , 191+4 a"cused HATA was the Commander

- l,CY73 -

in-Chief of t he Expedi tion~.ry For re to Chin~. Th0se o.r e t he onl y o.n~used

who could be l'ller..t ioned i n connection '"lith this i ncident. K-- one e] se hc::.d

rmy conne0tion whc., t soever with it.

The next i nsto.nr.e r el a t es t o t he or.curre nce s in the citv o f Hengyangi~

in t he Pr ovi nc e of Hunnn . Count 4q r el a t e s to this in~ident. The do. t e

i s given ~s prior ~nd subsequent t o t he 8th August 1944. I t mus t be r e ­

Member ed that the TOJ O Cab inet f ell by t he ~<nd of J uly 1944. At the dat e

of this indden t ac r.u sPd l\OI SO wc.s the Prime ~~in i ster and SHIGE~UTSU was

t he For e i gn tAini ster. 1-·o other accused was in the Cabinet. Acc-used HAT;\

wc::.s s till Co~mander-in-Chicf c f t he Expedi tionary Force t o China . The

Pr osecution did not a ddu ne anv e vidence i n support of this case .

Next r.omos t he o...llegnti ons of ntrocitie s in thE" r.itic·s of Kwr:dling

and Liuchow in t he Provine~, of Kw:mgsi. Count 50 r el a t es t o t hi s and the

da t e is given r. s pr ior and subsequGnt t o the l Ot h ~.rovember 191,4 . Her e

c.go.in t he e vi dence is not convi ncing c.nd i n my opinion t he nllegnt ions have

not been cst nbl ishnd .

Tl1c r.onn€:otion of t he ~~r. uscd rvit h the incident C0nt im,ed t c lJe t he

same 2s i n t hG case of t ht: city of Hcngyo.ng .

The so nr e t he only ins t a.'H'CS specifi cally mentioned i n t he Indi~tment ,

During triFtl , t he followi ng instc.n0es we r e, o.l s o int roduced through evidence

1. Instance s of \7::lnton dcst r untion of t he property by tl1c ~5th

Reg iment, 104th Brigc.de , 13th Di vi s i on of t he JnpanGso Army oc curr

i ng in Hupeh ProvinC·3 in 1943.

2 . Tr.e i ncident t hd t ook plr.cc i n the, vil l cge of 'ilitness Ti Shu Tc.np-

- 1 , 074 -

in 1Q4'2.

3 . Atrocit•.'" in Jen~hiu :-Tsicn in Septembe r 1943.

4 . At t he vi1l~ge Chunn Twen Tseng in 1945 by the 3eth bctalion of

the 4204th Jnpcnese Lrmy unit.

5. o~r-urrences in Knnngsi Provine~ during 1944-45.

6. Looting by J npr.ne se troops of Chinese civilians at t!'le SnlPin

River in Burma >:ig:hwny in May 1942.

f,r. counts of atrocities ~t other t he:1tres of' wa.r ~•ere a.ll introduced

through evidenCE in this case, The prosecution, in summing up the evidenc~

sep!'.rated the Pl-,ilippine Islands from the r est of the thnatres, and dividec

the entire period into seven divisions . ·:rc shall try to fo11ovr this

division both us to p1c.ce nnd time.

Tho division ns t o time stands :1s follO\:s:-

I. From the 7th De~crnbcr 1941 to 30th June 1942

II. From 1st July 1942 to 31st December 1942

III. From 1 s t Jc.nuc.ry 1943 to 3oth June 1943

IV . From 1st July 1943 to 31st Je<-0mbAr 1943

V. From lHt Jc.nuc.ry 19L4 to 30th June 1944

VI. From 1 st ,Tuly 1944 t o 31st De~emhAr 1944

VII. From 1st J:mun!"'J 1945 to 2nd September 1945.

The places named i n the summation are in the fo11ovdng order .

1. Ambon Island Gr oup

2. Andurnan and ~:cobur Isl~nds

3. Borneo

- 1,075 -

4. Burma and Si run

5. The Cel ebes and Surroundi ng I slands

6 . China other t han Ho~gkong

7 . For mos9.

8 . ~rench I ndo-China

9. Hainan Is~ands

10. Hongkong

11. J::~.pan

12. J a.va

13. New Britain

14. New Guinea

15. Singapor e and !·'ial aya

16. Sol omon I sl ands, Gilbert and Ellice Islands, Narn and Ocean

Islands

17. Suma tra

18. Timur and Lesser Sunda Islands

19. Wake Island, ;<:wa jalein and Chichi Jima .

Tc thi s lis t I shall add t he Philippine I slands as t he ~Oth item with

a · further subdivision in its case of the sixth period into one from 1st

July t o 8th October and the other, fror1 t he 9th Oct0ber t o the end of the

year.

I shall Pl ace t he incidents alleged t o have t aken Dl Bce a t each pl ace

separ a t ely, keeping in each case t he o~currence s during the periods named

~bove distinct. At ~resent I am giving only the occurrences r el ating t o

the "civilians in t he power of Jr.pan" bel onging t o .the differ ent countries

as alleged in Count 54.

- 1,076 -

The Prosecut:lon ac~ount of the atrocities committed against civilians

in the power of Japan in different places stands thus:

1. AMEVN IS:~ANDS GHOUP:

There was no case of such atro~ities during the first and third to

seventh periods spenified above . There was only one ~ase during the second

period. A witness named van r.rooten says that during this period a pre~ant

native woman was punched, knocked to the p.round and kicked in the stomach

by s Japanese guard in the presence of other guards. This is the only

instance of atrocity against t he civilians on this group of islands narrated

by the Prosecution.

Q. ANDAMAN AND ~IICOBAR ISLANDS:

There are no cases given for the first two periods and none during the

fifth period. During the third period we are given two incidents: one in

,:anuary 1943 and the other in :March 1943.

The January item is evidenced by the statements o~ ~our dif~erent per­

sons taken out of court . They all relate to ~ases of torture of individualr

suspected as spies.

The March incident is evidenced by a similar statement of one Murad Ali

and that also relates to torture of persons suspected o~ espionage.

During the fourth period there is one case given of a coolie dying as

a result of being beaten in August 1943 .

During the sixth period, again one case is mentioned having taken place

in October 1944 when an individual, suspe,.ted of theft of signal lamps, was

tortured.

- 1,077 -

During the seventh period we are given four cases, three in July 1945

and one in August 1945. The first case is of two 00o1ies being beaten to

death for allegedly stealing, and the second is of two Indians being beaten

to rleath to oompel them to confess having fired rockets, The case in

August 19/+5 is that about 700 Indians were taken by sea tov1ards another

island. When 400 yards from shore they were forced overboard; all ex~ept

203 drowned. The remainder were left on the island ~vithout food for fifty

days when the Japanese r eturned . The evidence in supDort of this naso is

again the statement of a man named Mohamed Hassen taken out of nourt. In

this statement he claims to have been one of the party of 700 and the only

one surviving.

3. BO~NEC:

The first incident is of 27 December 1941. It is stated that 213

I ndians were confined in one cell for day and nieht for one month. Later

they were forc ed to work long hours on an airstrip. The evidence is again

the statement of a man named Naik Ghandgi Ram of 2/15 Punjab Regiment , taken

out of court, and ho seems to be the only es~aping member of the ~roup . He

claims to have esraoed by hiding in the bushes.

During the third period we are given three instances. The first t wo

seem t o relate t o two prisoners of ~·,ar. The first one relates to the mal­

treatment of a private Hinchcliffe; and the second, which happened in March

1943, speaks of how an Australian, whilst a member of a working party, was

tied up by P~s wrists to R tre e and beaten about the head.

The third one says that from early 1943 onwards throughout Western

- 1,078 -

Borneo, Indian a r.d Chinese ''!Omen "Ver o arrested r..11d f'or~ed into brothels.

For the f'ourth pe riod we ar e given two in st ances : One happened in

August 1943 and the other in C('tober 1943 . The .Aueust incident rela t es

to one Sticpewi"h, who i s alleped to have been put in a cage with six

others . The Octobr:r inc:ident is evidenced by the aff'idavi t of one Mrs.

Hoedt. The statement s a.ys that a t Band.iermasin, in October 1943 , the

governor of Dutch Borneo, Dr. Haga and some t en officials wer e executed as

well as four men after a. so-called trial . Among them was a Sv'liss minister,

Dr . Fischer, t !1e official del egat e of the IntArnational Red Cross .

One '.'lould expect much bet.t e r evidence for such an incident . At any

r a to, we do not know ;-;ha t was t l1.o trie.l for.

During the f ifth period v1c are ""iven t v1el ve instance s b0ginning from

13 February 1944 to J une 1941+.

In support of the se :l.ncidcnts \'le ar e ,;siven \'Jhat is called a r eport

made by one Captain M. ~ . Dickson of the British Army ann a statement out

of court of one Hassan I nanam .

'J:'he r euort of Captain Diel<son stat es t hat in October 1943 a r evolt

broke out i n ,TcsBelton, Borneo . About f orty Japancs~ wor e killed. What

hapiJened thereaf'·~er rms in r e taliation of this incident .

1~ . BURMA ArD SIAM:

i"or this the<1tre of war we a r e given f ourteen instan~r; s f or t he entire

s even periods : The first on :.3 De~ernber 1941, the second in July 1942, the

third be t ween ~Tuly and [lovernbP.r 1942, the fourth in September 1942, the

next one in Sept•::mbcr 1943 . ':.:'hen four instance s a r e given from Feb:r·1ary

- 1 , 079 -

1944 to August 1944, and the remaining four in th~ yaar 1945. These are

mostly ovirlen ~ed by sb.tements t.:.1ken out of' nourt . At the •vorst these are

all stray instan~es of cruelty tov,•ards individuals covering a period of

f'ive years .

5. CELEBES AT'D SUJ.'10Ul\1T)ING J%ANDS;

Here •.ve &re given nine instances of which two o,.curred in Har~h 1942;

the next two or.curred in September and Ontober 1941; and the rest during

19/+4 and 1945. There were no occurrennes during the second and third

periods .

The in~idents of M:lrr.h 1942, strir.tly speaking, do not relate to

civilian population at all. The first one is that at Menado five Dutch

t-TCO 's, who had partic-ipated in guerilla ar-tivities and had been captured,

were e:X:AC"Uted; and the second is about the maltreatment and exe0ution of

two Dut~h NCO ' s who had defended the aerodrome and had been cantured.

In September 1943 we are told that a(Foelic om~ native was beheaded

and another ba~ronetted to death .

The incident of Or.tober 1943 is that a t Pomala a seriously wounded

flier was operated on ;Ji thout anaesthetic <.tnd he died "'i thin a few hours .

At .Tanuary 191...4 at Parepare internment camp a Roman Catholic priest

was thrashed to dAath .

In March 191...4 at Lolobata a native was beheaded without trial .

In Septembe r 191f4 at Soegita three native s wf>re beheaded without trb

A fourth vms attempted but he escaped somehow ancl gave this evidence .

In .. Tanuary 1945 ut Tondane two Dutch :!.ntcrnces ,.1ere 'mt in gaol and

- 1,0?0 -

-

later executed for ~ommuninating '•Vi th outsic.e p·~ople; and in February 1945

a t Menado a Dutch internee died from ill-treatment.

6. CHINA CTf~R THAN HONGKONG:

There are no incidents during the ~irst, se~ond, fourth, fi~th and

sixth periods.

Du r ing the third period in August 194j at Haiphong Road Camp a

civilian interne8 was tortured. to unconsciousness and subsequently died

several days late r.

On '2 April .1945 at China Matan a captured Jlme rican airman , whose right

leg was in,iurE1d, had his foot amput uted by a Japanese civilian using a

~rude knife and :10 anaesthetic .

7. FORMOSA:

No in,ident could be named f'or any of the periods, obviously because

Formosans were not enemies of Japan .

~. FRENCF INDO-GHI lA:

No inddents could be named during the f i rst five periods. During

the sixth period there v;as one incident in June 1944. As some cases ~f

disloyalty appeared amongst tr.e coolie s bringing water to the camp, the

Japanese seized a 19-yec:.r old bey who had just left ·.vork, b0und him to a

tree and beat him violentlv. He was found dead t.hc next morning from

strangulation.

During the seventh period we a r e given nine :inStances of atrocities

occurring at this place . The eYidence about tfl€:se atrocities is the

t .:7st.i.11wny nr one Gabrillagucs . His kncuU.codge is based on his "Study of

- l,g81 -

the Documentaticn of tho Wa r Crimes" tho.t the v1i tncss was making of the

war ~"rimes in Ir.do-China. The witness \70.5 a 11del~€nte of the Service .of

the !"ar Tribunal in I nd.o- Chir.a". The witness says, "Being in ~harge of the

investi~e.tion buroau for w~r ~riminal suspe~ts, I have been l e d in the

p9rformance of my functions to study a comprehensive body of documents ar.d

this fact has permitted me to have cognizance of the war ~rimes Mmmitted

in Indo-China b;r the Japanese forces • 11 The witness then N)nti nues , "The

number of these crime s is considerable, the do~uments containing t hem is

voluminous and ther e cc)uld be no cuestion of making a ~omplete expose c,f

them. Certain ::>f them are and will r emain unknmm because of the absence

of witnesses and the systematic destrt;·"tion of their f ile s carred out by

the Japane se in anticipation of an allied landing . " The materials on whic

the conclusion of thi s witness is based, of ~ourse , remain unkno;m to us.

~bat we qet i s onl y the conclus ion of the witness on materials which he

considers sufficient fo r his conclusion. The otbe r eviden~e of course are

statements of persons taken out of oourt .

9 . ~AINAN I SLP.ND:

No instan~es of atr ocities could bA uiven f or any period ex~epting tr

fourth . Only one instance is nrun E>d for the f ourth period.

On 1'7 Jul y 1943, 120 Chinese f rom n M')lie camp were bayone tted to

death •:vi thout trial. The evidence is the s tatement ta1{en out of' r.ourt of

one A. F. Winsor.

1 0 . HONGKONG:

Ne are gi •ren no J. ncidents f r om the second t o the seventh periods . 'l":i

- ~,08~ ..

inddents are given, all ocaurri ng in ·December 1941.

11. J AP Af.T:

Nil.

1'2 . JAVA:

Fourteen instances are named occurring dud.ng t he r.mti:re r,even ner" oc o

beginning from 1~~ March 194~ and ending in August 1945.

13. NEW BRITAIN:

We are given two cases during the fi r st period, ncne during t he ~econd;

three during the third, two during the fourth, one in the sixth and none

in the seventh period. These are all stray cases. Th~ evidence i s mostly

statemento of persons taken out ot· court.

Though in the summation the Prosecution spoke of Australians and

Chinese being captured or killed, these are mostly cases of Australian

and Chinese solniers being r.aptured or killed.

14. NEW GUINP.:A:

There is on~ case during the first period; five during the a~~ond;

none during the third, fourth nnd fifth periods; one during the s ixth

period, and none during 'the seventh peried. These are also stra;r nases and

are evi denced mostly by statem<mts of persons taken ~ut of' court. Most of

the oases relate t o captured soldiers.

15. SINGAPORE AND MALAYA:

We are given six instanceB during the f'ir st period, 1'1one duri ng the

second and third, four cases during the fourth period, and one <luring the

fifth, sixth and seventh periods.

- l,OA3 -

16. SOLOMON lSLl\.NDS , GILBERT AJJD ELLICE ISLA!IJ!.)S , NARH AT'D OCEAi\'

ISI.AlffiS:

Here we have no case during the first t wo periods; four cases du:-ing ~tl/'l)t.

the third period; none dt:tring the ~ · ~~ fifth and sixth periods, and ons

during the seventh period!.

The incident during the seventh period speaks of what happcr.ed a t tr,e

conclusion of war . There were only one hundred natives l eft on Ocean

Island. The Jaljanese marched them away in t wo sections , they wer f-; shot

and the dead bodiE:s to·,~ed out t o sea . The earlier incidents are all stray

0a ses. The evidence is c,f the same cha racter.

17. SUMATRA:

~Ve are given four <-.ase s during thG first period, one during the

second period, none during the t~ird period, one during the four t h pe riod,

none during the fi~th, and one each during tho sixth and seventh periods.

18. TIMOR AND LESSEFt SU!-."D.O. I SLANDS:

We havA one ease for the first period, six for the second, onP +'or

the t hird, one fOJ' the fourth, none for t hEO fifth, one +'or the sixth, and

none f or the seventh perl.od. All the se are stray cases, and the evidrmce

is, as before, statement~: of persons taken out of court .

19. WAJ\.1!: ISLAND, K :~!AJ'.AI,EIN AJ'TD CHICHI JIMA: ·

~e are given no instances from the second to seventh periods; onl y

one instance is given for the f irst per iod .

In ~.1ay 1942 &n Amer:l.can civilian was badly beaten and then be headed

in the presenc e of Admirt;.l Sakibara for an att empt at war e house breaking .

- 1,084 -

20. THE PHILI'JPINE I SLANDS:

During the first period we are given three inddents . In her af~idavit,

Exhibit 1417, Leonora Palacio stated that in the middle of February 194~

she, her two brothers and others were taken to the municipal building in

Palo. At their home there: had been a number of guerrillas and friends of

the family. One of the guerrillas was discovered and the Japanese,

believing there '1\rere others, took these people to the jail. These people

were tortured the r e in various ways .

In May 1942 in Iloilo City, an American by the name of Dr . Gilbert

Isham Cullen was qt:.estioned for several hours durine which he was s truck

in the abdomen wi tb a club, kicked v1hile lyinp on the floor, slapped

r epeatedly with the heel of the hands of the inquisitor . He was tortured

in various other ways.

About the miodle of J une 1942, a young woman was ordered by the puppet

g,vernor to eo to the home of Colonel MINI in Tagbilaran. \;~ben s he re­

fused they threatened to kill her. Colonel MI YI raped her . The following

morning she jumped out of' the window and succeeded in e sr.aping to a nearby

island .

These a r e the three incidents of the first period. During the second

period, we are given an ineident having taken place during July 194~ and

a..11other in Au,gu st 1942. In support of the July i ncident we are given the

t e stimony of Nena Alban, a nurse at the trial of Ge neral HOMMA . This

witness saw many in·~idents.. She saw f our Filipinos being hehea.ded. She

l ate r saw two more a nd the:t·eafter seven more who we-re mad"."l t o kneel aP.ross

- 1,085 -

a hole in the r rot:nd and were beheaded. She later saw t en more beheaded .

She saw other atrocities. She saw Filipinos slapped , boxed, kicked and

beaten. She saw four Filipinos being bayonetted later near San 9eda

College. She saw at l east seven Filipinos have thej r tongues pulled out

by pliers. It is unfortunate that an eye witness of so many incidents was

not pr oduced before us and we had simply ~·~hat she stated before anothr>r

t ribunal where none of the present a(\cused 'Nas represented . I ··rould not

for the pre sent pur-pose at~c-ept this evidence .

The incident of August 1942 is that one early da1m some Japanese

sdldier s from Dansalan City, under the command of four o~ficers , raided

the witness' s barr i o, whieh had a population of about '2 , 1500. They

immediately began bayonetting the peopl e and burned down the whole barrio.

This incident also is sought to be established by a statement taken out

of court and ~;e are not t old why the witness nould not be produced before

us .

The incident during the third period is of March 13, 1943 r1hen an old

Filipino, Tayambong Chagsa by name was tortured for not t el l ing the Jap­

anese the whereabouts of the American and Filipino sol di ers.

For the fourth period v:e are given five instances .

In August 194.3, after an investigation of an hour, t wenty-four men and

t hree women wer e all tied with hands behind their backs and s trung on a

pi ece o~ rope and pulled to a thicket '\•here they were behearled . The

evidence is a statement made out of court of one Jose G. Tupaz . The man

did not oome· before the 'I'r:lbunal,

- 1,086 -

On OctobGr 17, 1943 another. punitive expedition arrived at Bataan .

All ~i vilians we r e invGst:igated and beaten ,,,1 th clubs and maoe to rmlk

through fire . In the morning t he Japanese received order s to proceed ~d

140 civilians including t wo pri,; sts \"Jer e beheaded by Japanese sold:i.Prs.

This v.re are told from a summar:' of evidenc e of JAG Report No. 140 on

punitive expeditions on Panay I s l and by Japanese for~es. This r eport may

iL<• be admissible in eviden~e under the Charter but I ~an not a~ccnt this of

' f .

much probative force on a grave matte r like the one b0fore us. I do not

see why the materi3.ls on which this r eport might havo b een base d could not

b e disclosed to us so that instead of havinr, to r (-3ly on a con,.lusion of

the report, we might see 1.vhat concluf:ion we can ourselves arri vc at.

On De~ember 18, 194.3 Japan0se officers end enlisted men l eft Libo.cao

for Iloilo City. The next morning they ente r ed Camp !1opevale r.rhich they

surrounded and e nte r ed. Sixteen American and three othe rs were pla~ed

under ~uard ·:dthout food or \?at e r. On the afternoon of December '20, one

American noman 1'1as seen kneeling 'lith hands tied and as:dng for me rcy.

This was r efused. An hour later a house wo.s found in flame s v1ith t nr.: lve

bodie s in it, s ome of the victims having been bayonetted and others be-

headed. This is a l so from the same JAG R8port . I nAed not further comment

on thi s evidence .

For tho fifth period we ar•3 given an occurrenoe llhich took pla t'!e in

February 1944 when 35 Filipinos were questioned, beaten and t aken t o a corn

field and thGr o bnyonett e :i. This story again is given on the strength of

JAG Report No , 142.

·- 1,087 -

-

In March 1944 a young woman was r:aught hiding in the q;rass. The

officer in char ge tore off her elothes and took her to a small hut and

r ut her breasts and womb . This is a statement t aken out of oourt of a

man Lorenzo Polito .

On April 10, 1944, six Japanese bayonetted one woman . C'n August '>7,

1944, soldiers fired on people in the cockpit in Sant a Catalina. On

October 20, 1944, thirty were arrested anrl tortured . On November lS, 1944,

three prisoners v1ere beheaded . On Denember ?.7, 1944, several persons w0r e

tortured and on January 7, 1945, nine of the prisoners wer e beheaded. All

this we are given from JAG Report No . 302.

On June 6, 1944, about 300 Japanese together wi th Filipino Constab­

ul ary and Moro troops enter ed Ranao•Pilaynn ~nd gather ed the civilians.

On June 7, twenty pr isoners r;ere put in one house where they wer e bayonett ed

and the house set on fir e . ~e are r iven t his st ory also on the strength

of JAG Report No . 302.

During the first hnlf of the sixth period we are given two insta.nnes , ........ .

One h~ppening on August 19, 1944 and the other on O~tober 1, 1944.

At about 9 o' clock i.n the evening of August 19, 1944 the wl tness and

others l eft Cebu nnd were taker. to Cordova. When they o. rri ved ther e the

Japanese soldiers ga there~d all civilians in a nentral snhool house . The

women V!er e compelled to disrobe complet ely. Many of the men were beaten

with clubs . All money and valuables were t aken . The next morning three

men were beheaded,. The witness made this st at ement out of' nourt nnd did

not appear before the Tr:i.bunal ,

- 1, 088 -

On 00tober 1, 1944, about fifty Japanese sol diers entered the

hospital area at Barrio Umagos a~d bavonetted two Filipino guards and one

civilian. Two bedridden patients were bayonetted to death. Three days

later, the Japanese burned the buildings and about thirty-two hou~es and

left. This is again .JAG ReDort 1-'o. '282 . There is nothin!!, else in support

of it.

T need not gj ve i n detail the incidents taking place sin~e Povember

1944. '".Je are given several incidents taking place during this period and

<'ertainly these were atrocious misdeeds.

'!'hese are thE~ i!"lstan~es of atrocities perpetr ated bv the Japanes8 army

against the civilians at di.f+'erent theatres during the entire period of the

war. The devilish and fiendisr. ~haracter of the alleged atrocities cannot

be denied.

I have indicated against e:ach item the na ture of the evidence adduced

in support of the cccurr ence . However unsatisfactory this evidenee may

be, it cannot be denied that ma.ny of those fiendish t hings were perpetrat ed .

But those who 'llight have committed these terrible brutalities are not

before us now. Those of t her11 nho C'"'uld be got hold of alive have been made

to answe r for the:.r misdeeds mostly v1ith their live s . We have been given

by the Pr osecution long lists of surh criminals tried and "Onvi~ted at

different forums. The very length of such lists is suPf'ic iently assuring

that no mistaken nlemency towards these alleged perpetrators of all such

foul acts rould find any pla~e anywher e . We are , however, now considr>ring

the case or persons who had no apparent hand i n the per petra tion of' these

- 1,089 -

atrocious d.t';!eds.

It may at on~H be said that so far as this part of the case is con-

cerncd, there is absolutely no evidence of any order, authorization or

permission as alleged in Count 54. There is nothing on the re~ord w~•ich ( l 'ltj

can in way ~~ support the allegation of ordering, authorizing and per­f

mitting the commission of t he offenses named in Count 53 and charged in

Count 54. In this r e spect the case before us stands on a footing entirely

different from what was fc:mnd established by the evidence at the trial of

the European-Axi s-Major-Viar-Griminals.

As I have alr.3ady pointed out, there were in evidence a t the £lurnberg

trial many orders, ~ir~ulars and directives emanating from the mc.,ior vm.r

criminals indi~et~ng that it v~s their policy to make war in such a re~k-

less, ruthless way . We know that during the first 11forld ··:ar, also, the

German Emperor was charged '.'!ith issuing directive s like that.

The Kaiser Wilhelm II ·;1as credited \'ri th a letter to the Austrian Kaiser

Franz Joseph in the early days of thnt war, wherein be statP.d a s follows:

11My soul is torn, but everything must be put to fire and sword; man ,

~omen ann children and old men ~ust be slaughtered and not a tr€e or houso

be l eft standing . With these me thods of t errorism, v1hich are alone ~a.pable

of af.fe,.ting a people as degener ate as tl;e French, the war ' 1!ill be over in

two months, whe r eas if I admit r.onsiderutions of' humanity it ,.;ill '1-)c pro-

longed for years. In spite of ~y r epugnance I have the refore bee n obliged

to choose the former system."

This showed ris ruthless policy, nnd this uoli~y of indis~riminet~

- 1,090 -

-

murder to shorten tho v1ar was consider ed to he a ~rime,

In the Pacific war under our consideration, if the r e was any thing

approa~hing Vlha t is indicated in t i1e above l e tter of the Ger man emperor,

it is the decision coming from the allied powers t o u se the atom bomb.

Future generations will .iudge this dire deci sion. History 1\'ill say whethc.

any out burs t of popular sentiment against usa::e o+' such a new weapon is

irrational and only sentimental and whether it has become l egitimate by

s uch indiscriminate sl aughte r t o win the victory by breaking the i'Jill of

the whole nation to conti nue to fight . 'de need not s top her8 to consider

whether or not 11 the a tom bomb comes to force a more fundamental searching

of the nature of warfare and of the l egitimate means for the pur suit of

mi1i tary ob.i entives". It would be s ufficient f or my present ourpose to

say that if any i ndiscriminate destruction of civilian life and property

is still illegitimate i n warfare , then, in the Pacifi c war, this dec ision

to use the atom comb is the only near approach to the directives of the

German Emperor during the f irst world war and of the Nazi l eade r s during

the second world v1ar. Not hing like t his could be tra~ed to the credit of

t re oresent an~used.

The Prose r.ution seeks to build up its case in this r esped in+'e r entiaJ

ly +'rom the alleged knov1ledge and inaction on the part of the a~~"used con­

r.e rnad. It ass£n·ts that the evidEJnce adduced i n the case establishes t hat

the Japanese Government had knowledge tha t ~·Jar ~rimes had been and '.vera

being committed. Fr om this f'a~tum of knowl edge coupled with the fa~t that

it made no ef'fe~ti ve attempt to pr event their continuance , ,.,e are invited

- 1,091 -

to hold that such nrimes we r e being committed as part of the g'Overnments 1

policy.

The Prosecution told us thu t in i ts summation the exprl? ssion ",T a pens se

Governrnent 11 is used in a ve r y Ylide sense as embracing not merely members

of t~e Cabinet but also senior officers of the Army and ~~av:{ , ambassadors

and senior career public servants. We must, therefore, take the expression

as used here in that wide sense.

So far as the Nanking rape is c onc erne d, the Prosecution claims to

have established that the follovrl.ng persons had knowled!je of it:

l, A~cused WATSUI , who at that time commanded the Central China

Expediticnary Force (Exhs. ?.5 , ?.55);

2. The Japanese diplomatic orficials in China;

3. The For e ign Office in Tokyo;

4. The Foreign Hinister, ac cused HIROTA;

5. A"cUsed MHJAMJ , who YWS at t !:lat time Gove rn(')r Gene r al of Korea;

6, Nobufumi Ito, Japanese ~~inistcr a t large in China ;

7. The House of Peers; and

8. Accused KIDO .

For the knov1ledge of' accu f;ed MATSUI , his .ovm statement is r elied on

nhere he says that he was in 1-!anking on 17 De l"!eml:Je r 1937 aTld remained the re!

for one ·ueek before returning to Shanghai. He heard ~"rom Japane se diplomats

as soon as he e ntored Nanking tha t the troops had committed many outrages

ther e .

The def endant, General l'.IDTO, then Adjutant t o the Chief of Staff , statec

- 1,092 -

that he went to TITanking ''l:i. th General NiAT.SUI for the "taking-ovP.r" exorc ises

and r emained ther e for t en days ,

The Prosecution points out that General fMTSUI remained in ~ommand

until February 193g, but that during the period no effective steps wer e

taken to ~orrel"t tile situation .

As to the knowledge of the Japanese diplomatic officials, the evidr;nr.r:

is of Dr. Lewis Smythe, who was secretary of the International Committee

of the Nanking Saf~ty Zone, organized by a group of German, Sritish,

Ameri"an and Danish citizens who were in Nanking at the time of t,h8 fall

of that ~itv. ~r. Smythe was secretary of this committ0e from 14 Decem~&r

1937 until 10 February 1938 . His evidence is that the committee made

daily personal reports to the ,Tapanese '.';mbassy in !1!anking . Dr . Smythe says

that the Embassy continua lly promised that it v;ould do something about it,

but it was February- 1938 before a.ny r.ffect ive artion was t aken to ~orrect

this situation.

Dr. Bates, professor of history in the University of Nanking, ·•1ho \l7a. s

a founding member of the Intern~tion~ Committee f or Safety ?.one, i n his

evidence stated tha t almost daily for the first three ~1eeks he vJent to th-3

Embassy vd th a typed report or letter ~overing tbe pre~eding <1ay , and

frE"quently had al so a. nonversation with the officials regarding it. ThGse

officials were r.1r. T. Fukui, who had the ra~.k of r.onsul; a certain Mr.

Tanaka; and the Vice - Consul, Mr. Yoyoyasu Fukuda. Mr. F'ukuda i s now

sec:rc tary to the Premi er, Yoshiria. .

According to Dr . Ba'tss, these Japanese authorities wore hon8stly tryinF

- 1,093 -

to do what little t hey 0ould i n a very bad situation but they themsel ves

wer F> ;terrified by the military and they flould do nothing except for ward

these communi~"ations throur h Shanghai to Tokyo . These officials in the

Embassy also assured the wi tness that on several o~~asions stron~ orders

wer e sent from Tokyo to rest or e crder in Nanking. The wi tness al so

l earned from the foreign diplonats and from a Japansse friend of ,_, is r~ho

a~companied the deputation, that £k-P1gh m~~J:tarv o+-ficer called together

a l arge body of lowe r offiners and non-c001missi oned o"'fi11ers, t el l i ng them

very sever el y tho.t t b.ey must better t heir eondu(lt for the sake of the

name of the army.

The witness further t e stified that the situation did not substantially

improve until the 5th and 6th of February 193e ~nd that he knew that re­

ports made to the J apanese Consulate in No.~<ing were sent by it t o the

.Tapanese Foreign Off ice in Tokyo. "After February sixth and seventh" , the

witne ss said, "ther e was a not.iceo.blc improvement in the situation, and

although many serious erimes or-curr~d between then and s ummer, they wer e

no l onger of a mnss and intolErable charact er."

He further Btated, "I have s0en telegrams sent by Mr. Gr ew , the

Ambassador in Tokyo, to the American ~mba.ssy in Nanl{ing , which r of orred to

these reports in gr eat detail and r ef erred to ~onvr;rsations i n 'ilhich th.<;y

had been discussr:>d between Mr . Grew and offi cials of the Gaimusheo in­

cluding Mr. HIROTA" . Of course , he did not other wise know if these r eports

we!"e r P-ally sent to Toky·o n.nd to whom they WE'r e sent.

Accordin9' to the Prosecution "all r eports ~"oncerning those atrocities

- 1,094 -

were fnrw.'lrded to HIROTA i n addition to 0ondemning pres s reports from the

Foreign Press, but even whe n reports continued to come in, he did not

press the ques tion "lith the War Ministe r , nor refer it to the Cabinet".

The evidence is tha t HIROTA comrnunica t Pd this to the then War Min­

istr:-r, General SUGIYArf.A. The Tar Minister promised t o ta>e immediate

s t eps and did s end a strong warning . A0cordingly, HIRCTA a ssured Grew

that "the strictes t possible instru('tions had gone out f'rom the General

Headqunrte rs to be handed down to all the commanders i n China to the

effec-t that these depre da tions must cease and that !l.ia ?or General EO!.'l.A

had been semt to Hanking to investiga te and to e nsure complian~e". (F' xh.

J~e)

It is in evidence that on January 19 Mr. Grew r eported from Tokyo

that HIROTA had taken action on Grew's protest and toot "a. drastic measure

to assure compliance by forces in the field ···ith instru~tions from Tokyo

is being ~onsiderod".

Accused MHTA~U a t thr..t time was Gove rnor General of Korea. Fe r end

r e ports of the atrocities in the press. I do not see hov1 this helps the

prosecution case in any way. ~~ his only shows t hat ther e we r e pres s re­

ports of these a trocities . r1o one denies tha t .

N()bufumi Ito , ~·:inister nt large from Japan to China f:rom Sent P.mbe r

1937 to February 1938, t 1)stified thD.t he r ece ived r enor t s +'rom members of

the diploma tic oorps and from pr Gssme n tha t the J a pa nese Army nt ~anking

had committed various atrocitiGs a t tho time . He furthe r t estifie d tho.t

he did not see~ to ve rify t he se r eports but sent a vene r al r esume of the

- 1,095 -

-

reports to the Foreign Office in Tokyo, all of ''lhich wer e r~rldressed to the

Foreign P:iinister .

Forei gn newspa.oer ac~"ount s of the atrocities were r ef erred to in t he

Budget Committee of the >]ouse of Peers on the 16th of February 193f! ,

after the situatic'n had already been brought under control. The acrused

!UDO was pres~nt there. But I do not see how this fact supports the

pro se~ution theory· of government policy at all. These criticisms and

comments '.Vould rather go against any such hypothesis .

The above evidence no doubt shows that the reports of th"' ~7anking

atrocities reached the Tokyo Government . The evidence also d iscloses

that the Government did move in the mat t er and ultimately the Commnnder­

in-Chicf, General !1;1ATSUI, was r eplaced by General HATA . Th13 atrocities

also abated by the fir st week of February. I do not see why, from thi s

evidence, v~ should bo driven to the conclusion that such atrocities wer e

the r F>sults of' the oolicy of the Japanese Government.

ThP. Pr osecution contends that as, even after th:is 1•Tan.1<ing l nri c'l.ent,

simil ar atrocities were perpetrated subsequently in several othGr t heat ers

of war, it ~vould te l egitimate to infer that the Government did not want

to pr ovent the cor.tinuance of this atrocious conduct of the Japanese Army.

The Prosecution cla ims that the evidence adduced establishes the following

fa,.ts:

1. The Jc.panese Government a~quired knowl edge of the rnpe of Nanking

and ther eafter it had r eason t o be on its guard against the

r epetition of war ~rimes by the J apane se +'or~e s t hr oughout the

- 1,096 -

fighting :.n China and t.he Pacific War;

2 . I t acquired kno;1ledge of thG commission of othr r war ,..ri:ne s Pri or

to the ou;~break of the ?acific t'lar;

3. It acquirnd knowledge of the commiss ion of v1ar ~rimes in almost

every theatr e of t he Pacific War;

4. Yet it made no r ('al attempt to pr event t heir 0ontinuant'!f' .

The contention of the Prosecution is the.t the above f acts ',"/Otlld be

very ~agent evirlence of the fa~t that such crimes Wf::r <;; ,..ommitted. a s pG.rt

o" the Gove rnment 1 s policy or that the Government .,-;as quite indi ffer ont

as to "'~ether they were committed or not.

I wot1ld examine hor: far the evidence on the r ecor d v:ould go to es-

t o.blis h the facts s t ated above by the Prosecution.

I ''!auld, first of [1].1, tako up the C!L~SG of atrocitie s alle r:red to :1ave

b --- en commi t tcd at Pank.ing.. The ProsEJ cution evidence i s that when Nanking

f ell on 13 December 1937, all nsistanc c by Chinese force s 1'1ithin the

,..ity reused. The .fapanese soldiers, adv::mcing into the city, indisr.rim-

inatr.:ly shot civilians on tho street . On,. :: the Japanese soldiers had ob-

tained com7ll e t e cor:unand of t he d ty, an orgy of rape, murder, tortur e cmd

pill age broke out and c ontinued for six weeks.

During the first f ew days, over ~0, 000 DGr sons wer o execute d c . . .

1 by the Japanene. Tho estimat e s of the numbGr l<i11ed in and a round

f11anking VIi thin six ''leeks vary from '260 , "'00 to 100 , 000, all o" '··hom \·•ere

pra,..tir.ally murder ed r!ithout trial. The acruracy of thc~c estimat e s is R ~ ()~

indicated by t he fa~t tha t th<' r 0r.ords of the: _ · Swastika Society and

- 1, 097 -

the Tsung Sh::tn Tong sho·as that these two organizations ~!'ltVJP.en them buri ed

over 155 , ono bodies . Dur ing the same period of six ·weeks , not less than

20 , 000 vmmen and ~irls wer e raped by Japanese soldiers .

This is the Prosecution a'1count of the Panking r ape . As I have al­

ready pointed out, there is some difficulty i n a r.cepting the ac~ount givcL

in its entirety. There have been some exagger ations and pGrb.aps some

distortions . I have already noticed some s uch instan11es . There :vere

r.ertainly some over- zeal ous witnesses ~::hose eviden~e ·;•ould require careful

s~rutiny.

I may mention here one particular ·,?itness whos<:; n&me was Chen Fupao .

The statement of this v1itness is Exhibit :?.08. In this statement he clo.ims

to have been eve - ;dtness of thirty- nine Derson s having been taken away +'rom

the re~ugee area on the 14th December and having been machine- gunned ~nd

kill ed nGar a little ~ond . This , accordinr- to the witnsss , happened in the

daytime in the morning near the Ame rican Emh<...ssy . On the lAth he was taken

by Jaoanese sol dier s and again so.w a lot of heal thy young men being killed

\'~i th bavonets . On the so.me day in the afte rnoon he \'las taken to Taiping

Road and ther e 3aw three Japanese solcUers set fir e to two buildings . :!e

~auld even give the names of these Japane se soldior s .

This seems to me a somewhat strange witness. The Japanese seem to have

taken such n special fa11cy of him as to t n:{e him to various pl~:: ~es to wit ­

ness their various misdeeds "..nd yet spo.rfJ him unhnrmed . This witness , as

I have said , states thc.t on the ver:J second day the J o.pc..nese v•rre in ~~an­

king the" took thirty-nine p t=>rS:)nS from the r efur-ee area . The witness is

- 1,098 -

definite tho.t it w:1s the 14th of December when this t ook place . Of this

group, thirty-seven were :dlled on tha t very dRy. Even Dr. Hsu Chunn-ying

could not say ths.t any sw~h thing h..1.ppened on the 14th of !Je~ember. He

speaks of the Japanese ~ehaviour of the 14th December in r elation to the

r efugee cc.mp, but does not say that anybody was taken away ~rom the ~amp

on that day.

l'Jhatever that be , as I haV!3 already observed, even making allowance

for everything that ce.n 1-:>e said against the evidence, there is no doubt

thnt the condu~t o f the Japnnese soldier s a t Nanking was atrocious and that

such 3.trocities we:re intense for nearl y three weeks and continued to be

serious to a total of six vmeks as wc.s t estified t ·' by ;)r. I?ates. I t was

only after Februa ry 6 or '7 tha t there was a noticeabl e improveme nt in the

situation.

The def ense did not deny the fact of [ttrodties having taken planA a t

Nanking . It onl y eomplainen of exaggerations and sll';gest ed tha t a number

of the atrocities were committed by r e treating Chinese soldiers .

There is abso1utely no evidence e. bout the a trod tie s in the City of

Canton in 19'3e . The Prosecution introduced some evidence of a tr0city here ,

but that rel ated t o the yea rs 1941 and 1944 .

The evidenc8 rel a ting t o the yoar 1941 is Exhibit .351, being the

st-'ltement of a man named I,iu Chi- yuan taken out of court . The v•itness did

not come before the Tribunal. The stat ement purports to na rrate the

incident of one singl e day. The entire st atement s t a nds thus :

"On the ast day of the l ?.th month (luna r calendar), 1941 ,

- 1 , 099 -

Jnpanese troops entered tte city of Wei-Yang, Kwang tung. They

indulged in a massa~re of the Chinese civilians, bayonetting them all,

male and female, old and young without discrimination. I was the

eye•witness of more than 600 Chinese slaughtered by Japanese troops

in su0.h places as the West Lake, Wu Yen Chiao, Sha Shia, Zai Pu

Chang, Ho Bien, Fu Cheng, Shine Kung, Hsien Cheng, Chiao Si An, the

outside of the West Gate and 1'1orth Gate, Pai Sha, Many others were

killed in various other pJ nces , Those killed by the Jap9..nese amounted

to approximately 2,000 and they were all d vilians. I escaped from

the oity and fled a::: far as Wu Yang Chaio wher e ten Japanese sta})bed

the left side of my abdomen with bayonets. I went through 20 days

of medi~al treatment. The scar on my abdomen is an evidence."

The other evj.dence relates to the year 1944. It is also the statement

of a man tnken out of court. 'I he statement is F.xhibi t .350, The name of

the man 1s Wang Shi-Ziang. The entire statement stands thus:

"In the morning of July 4, 1944, the whole Japanese Kojo troops

arrived at Hiang Doong village of the Shan District, a place then under my

administration, 'I'hey indulged in <>.rson, robbery, slaughter, and numerous

other atrocities. As a r esult thereof, 559 shops wer e burnt, and mor.e

than 700 Chinese civilians killed. The damage sustained in the destru~tion

of properties amounted t o more than 200,ooo,noo Chinese dol lars , according

to the estimation made in 1944. Besides, ther e were more than 100 Chinese

oivilians wounded by the Japanese soldiers, Those vJhose wher eabouts are

unknown since the ir escape from this village ar e not included in the above

- 1,100 -

mentioned number."

This is the ~ntire €vidence about the alleged atrocities in tho

Kwantung Province. However much Pe may consider ourselves free from any

r estrictive rules of evidence , I am afraid, we cannot entertain ourselves

with similc.r rdaxntion in det ~rmining the probative forne of any supposed

evidence. I decline to attach any vulue to statements like these i n ~ ~~sc

of such gravity. I cannot believe that had atronities been really nommitted

in that provinne, the Prosecution could not have arldu~ed any bGttcr evi-

dence of the same .

I run not satisfied with the evi<ience of similar atrocities at Hankow.

The only witness whose evidence in this r espect tuc•.? ; c;y '( ,l. /1 ( ~

eration -i~ Albert . } • The witness is the

is worthy of some 0/- i£..

Mannger~·standard I

consid-

Oil

Company and was at Hankow during the l atter part of October 1938 . The

J a.panesc occupation of Hanko\< took place on ':!.7 October 19.3~. Ther e ··1ere

four or five Americc.n gunboats at Hc.nkow ·:t that time . The witness sarJ

some atrocious incidents from these gunboats v1hicb he nar.r at cs in his

examinc.tion-in-orief. The o~cupation took place in the afternoon . The

morning after thG oncupation the \'d.tness sc.n several hundred Chin11se soldier s

collected by the J apanese at customs wharf. At that time in the Yrmgtze

River the water being extremely low gangplanks running about half a mile LtN!l"Z-L

from the solid ground out into the river r used . The Chinese soldiers

in groups of three or four wer e t aken down this long ~angplr.mk and wer e

being thrmm into the v:nt or . They wer e shot ¥/hen their heads a!)pear r:d

above the v~ater. Thi s witness along r1ith others on the American gunboat

- 1,101 -

wc.s wa tching this. When the :rnpanese soldiers saw them doing that they

stopped. Afte r tha t they put n group in a s t eam l :J.unch o.t t he same pl ace ,

took thc.t out in the stream and there threw them ove rboard and shot them

when t hey came up .

The story iG given by this '.<J itne ss only nnd unfortunately none of the

othe r eye-witnesses have been examined .

It may be ~:marked he r e tha t pra~tically for eqch kind of story only

one witness is produced), may'ue to minimize the possibility of discr epancie s

and contr adictions. According to this witness , Chine se were being l ed dovm

the gangplank and just nt the point r1henoe they were kicke d into the river

thev we-re being physically exmnined. It is difficult to see why the J a p­

anese f 0lt tho need of following this usel ess process of inspP. ction right

at the wate r edge .

I n any ca se on the evidence of thi s witness alone I urn not prP.pared

to f'c.st en any gu1.1 t of c•mission on the accused .

The evidencE' of two of tr. e de f ense witnesses may be specially

mentioned in this connection - both v1itnesses were before the Tribunal for

cross-e xamination by the Prosecution and, in both ~ases, the Prosecution

did not cross -examine them. Witness Yoshikawa \7£\S in cha rge of t!1e r ear

staff members of the 6th Division during the Hankow campaign . At the

t ermination of the Via.r he held the r ank of Lt. Colonel. The other YJitnoss ,

Yoshibashi, Kaizo , m.s u capta in at the time of the o.ttack upon Hankow nnd

VJa s attached to the staff of t :1e Second Army. These wi tncsse s gnve us

quite o. differ ent account from wha t was given by Mr. Dorrance . I do not

- 1,102 -

see why r~e should not acr:ept this evidence , s:per.ially ·when the Pr osecut ion

did not even suggest anything against their veracity.

The Pr osecution admits that ther e i s no evidence of t he alleged atr oci­

ties at Hankow having ever been r eported to the Japanese Govern'llent r1s in

the case of t-:anking . This is not a negligible factor in these days of

propaganda.

Coming to the case of atrocities a t Changsha again , the Pr oser:ution

relies on a statement t aken out of court of one Hsieh- Chin- Hua . The

sta tement is Exhibit 342 and it staDds thus:

"After t he Ja:panese forces had occupied Changsha, they freely in­

dulged in murder, rape, incendiarism, and many ether atrocities throughout

the di strict.

110n 17 J une 1944, more than 10 soldiers went t o To-shih, Shi Shan , to

plunder. One of them v1as ho'lmver shot to death by the Chinr;se Chen Ni

troops, c.nd thi s gr eatly er1r aged tho Jap[;llesc soldier s who thus hit upon

re taliation against civilic.ns . On thnt evening, mor e than 100 Japanese

soldiers , armed with machine guns , visited tho pl ace again . They machine­

gunned and then se t fire t o all houses from both ends of the str eets . Over

100 business housss including stocks of goods \Yere thus entirely r crluc:ed

to ashes.

"I v1as one o:f the victims who managed to e:scnpe from the tovm. De­

prived of all pr::r .:;onal bGlongi·,gs b y the fir e , I became homelc-ss and had

t o live on alms."

I wonder if thi s nitness did not r eally manage to escape hofore any-

- 1,103 -

thing could hc.ppcn to the r.it;r. In any cc.se, such a state-ment may be

o.dmissible in e~dence under the Cho.rtcr; but I ro.nnot plo.cc c.ny r <:linnce

on it. Defense witness YokoJramu wo.s commc.nder of the 11th Army Corps t k<t

l aunched the attack on Changsba and ocnupied the city . He t r;stified thc.t

the rE: wer e no .:J. tl•ocitie8 committed the re.

The Prosecution introduced another such statement in order to shov1

anothor instance of :J.trncity committe-d nt Chc.ngsha . This sto.tcment is of

one Trunura, Nobusada, lance corporc..l of the First Company, Firs t Ba ttalion,

Second Independent Mounted Artillery Re giment of the Japanese Army . It is

Exhibit .341 in this case and it r e l ates to c.n inrident allegP.d t e h.r:\ve

taken plane in September 191~. So , this hc.d nothing to do with the

allegations in Count 4S, ,.1hich w~s ::Qleged to have taken place in 1944.

Moreover, the s tatement only shor1s some stray art of a ce rtain battalion,

having nothing t o do \d th any atrocity committed c.gainst any d viliun

popul a tion .

As rego.rds the a lleged c.trocities committed a t Hcngyung, chc..r ged in

Count 49, ther E is no evidence on r ecord. The city is in the province of

Huno.n. Changsha also is in tht=: sruno provin~o. The Prosecution nc rh'lps

t hought tha t the evidence relating to Cho.ngsha a s noticed above '·"ould ~over

also this case, Whf'.tevcr that be, s o f a r as this particular city is con­

c erned, there is absolut•::ly no e vidence t o support this c a se .

Atrocities at Kueil:i.n and Liuchov.r a r e all eged in Count 50 . I n support

of this r.asP. , we ~ave Exhibits 352 and 353.

Exhibit 3S':2 i s a st£.t sment. signe::d by tho president o.nd vir.':) - pr"sident

- 1,104 -

of the ~ity ~ounr.il at Kueilin, chairman of. the board of direr.tors of the

Chamber of Comnerce o.t Kueilin, t wo managing dire~tors of the Chrunber of

Commerce of Kueilin, and the chairman o.nd vice-chairman of the General

Labor Union of Kueilin. It is dated May 21, 1946 o.nd relates t o atroC'li­

ties committed by the Japanese troops in that r.ity on a particulc.r day i n

1945.

Count 50 relates to certain incidents occurring in ~ovember 1944. The

statement refers to what the Japanese troops stationed at Kueilin did o.

few days before their ·r~ithdrawal from that city on the 28th of July 1945,

fearing that the communication bet ween Kwangsi and P.unan might be r.ut off

by the Chinese Army then pushing forward . The Japanese Army was in

occupation of the city for nearly a J~ar. The incident mentioned is alleged

to have taken place only when they were forced to withdraw from that ~ity.

The next exhibit, 353, is n statement purporting to be of nine cHi­

zens of Kueilin, dated 2'7 May 191~6. This stetement says that "during the

period of Japanese o~cupati on of Kueilin, v1hich last ed ebout E year, they

freely indulgPd in all k:inds of atrocities such as rape flnd plunder," etl'!.

The statement is very general. There might h&ve been stray cases; even

such stray instances would provoke similar ~tatement from the vi llc,gers.

De 4'ense witness Masuda, who took part in the capture of Kueilin,

having been a sta::' f offi~~er of' the Eleventh Army under the r.ommand of the

commander-in-chie!:' of thE~ China Expedi tion:,_ry Force , gave evidence in this

case in court, and he wo.s not ~ross .. exo.mined by the Prosecution. He denied

that there was ruw e..trccity committed there or th11t there was any di sorderly

- 1,105 -

conduct on the part of the Japr:mese troops.

Yokoyama , Isarnu, who was the ~anmnnder of the Eleventh Army Corps

which att acked and onnupi ed Chnngsha , Hengynn, Kueilin and Liuchow, ~lso

gave evidence in this case; and he, t oo , was not ~ross-exrunined by the

Prosecution . He also denied any disorderly conduct of the troops .

The Prose~ution evidence does not convince me of the a~count given

therein.

I need not proceed to exrunine ~n details the evi~ence r elating to

the other s tray c~ses of atrocious acts introdu~ed in the evidence in this

case . The evidence in almost evory case is of the sllllle characte r.

At any r ate such stray cases prove absolutely nothing f'or our present

purpose .

The case of ·~he Philippines is presented as another instunce of or­

ganized mass atroeity, and t he ra.pe of' Wunilc. is likened to the rape of

~Tanking.

During the first period , \Ve are given only three inddent8, one

happening in the r~indle of Febl'uary 1942, anothe r i n ~1ay 1942 and t he third

in June 1942. These are all stray instances and , I believe, the actual

perpertrators of t hese misdeeds have been adequately del3.1 t .vith . For our

pr e sent purpose such s tray inst.:mces pr ove nothing . The re is hardly any

c.rmy of any of the Powers including· the victors where similar stray

oc nurrcnces do not tnke place.

The r eal "rape of Me.niln" begins at a time when the wa.r tnkes its

turn against Japan .

- 1,106 -

~Nhile considering the cases of :1troci ties in the Philippines we cannot

attach Much importance to what happened there subsequent to October 9, 1944.

That W9.S a period when it became impossible for the Japanese ('ommanders to .e.-

control the troops ~ffe•: ti vel y . Al l lines of communi en tions be~ame

destroyed or disorgani"?;ed and the vidorious American a rmy was effectively

blocking all l inE!S of communiC"ation. Their failur e to control the troops

during this period cannot be ascribed to any di sregard of duty, not to

speak of any 1111ilful di sregard of such duty. ''!e should remember that under

the Chart er "disregard of duty" itself, though deliberate and reckless, is

not a listed crime and consequently is not within the competence of this

Tribunal to try and punish. Disr egard of duty is only a relevant eviden-

tiary f act t o est ablish that the actual criminal act was the ant of the

per son who i s said to have disregarded his duty .

If we analyze the evidence , it will appee.r thnt instances of the

alleged atrocious incidents were very r ar e during the first five periods

mentioned above . There rnight have been some strav c ;;.ses but such incidentf1

a r e not at all unusual. There is no a rmy or navy in the world which has

not committ ed ~rirry es of this na ture. Those who committed such acts have ,

I believe , alread.'T been punished. I do not think that from such stray

cases we can draw any conclusions as to the policy of t he government; o.nd

i t i s this policy with which we are now concerned . The analysis given

above will show that the r Pal atrocities on a larger s<'ale were committed

during the latter part of 1944 at a time when the war had talcen its turn

against Japan and the .Japanese Army got hopel essly disorganized •

... 1,107 -

It is difficult to mnke even the commanders of the army r e sponsible for

what was happening ~t tha t time. Such acts would not, in mJ• opinion, even

indicate any negligence or wilful omission on the part of the commanders

i n the field. It would b8 absurd to s uggest that such conduct of the

soldiers at that stage of t he war would in any way rcfl e~"t on the Dolicy of

the government, which was opern.ting f ar a-way from the fi eld, ho.vi.ng a t

that time even no satisfactory ~eans of communication.

On a r eview of the entire evidenr.e from this point, I have come to the

conclusion that t he evicl.ence would not entitle us to infer that the members

of the government ~n any way ordered, authorized or permitted the ~ommission

of these offenses . No r can I accept the Prosecution hypothesis that such

offenses were comrritted pursuant to any government policy. Ther e is no

evidence , t es timoni al or circumst antial, connOJm#tant, prospectant, re­

trosrectant , which would in any r~ay l ead to the inferenc e thnt the ~overn­

ment in any way permitted the commiss i on of' such offenses .

I would, therefore , a t once say that so far as .ARAKI, EIRANUI'IL\ , HIROTA,

HOSHHJO, KAYA, KitO, r<OISO, lv!INAMI, OKA , OSHHJ!A, SATO, SHIGEJiliTSU, :JHIMJI.DA,

SUZU.~ I, TOGO and TOJO arf concerned , I do not find any evidence which

would entitle me to infer that they or uny of them in any 1no.y ordered,

authorized or perrritted the commission of these offenses; or that t here was

any such i nartion or omission on their part which ''JOUld indi~ate t hat these

wer e really pursuant to their policy or thut they desired or intended that

such arts be done. In my opinion, as members of the government, it was not

their duty to control the troops in the field, nor was it within their

- 1,108 -

power sc tc r.ontrol them. The commanding of'fi,.er was a r esponsible per•

sonage of high rank. The members of the government wer e 0ertair.ly entitl ed

t o r ely on the compet ency of such high-rnrucing of~i~ers in this respect.

Ever:v government fun('tions with the help of the nppropriate machin::>r-

ie s . These hi~h-ranking members of the vcvernment were entitled to rely

on the proper functioning of the mar>hinery. Ther e is no evidence in thi s

cese that ther e wes any willful distortion of this marhinery. ~ar is hell.

Perhaps it has been truly said that if the members of the government can

be tried and pun.Lshed for happenings like t his, it would make peace also

a hell.

As the evidence s tar.ds, :: cannot find any of the above persons guilty

either of any r.r:Lminal omission or commission i n this r espe"t.

The case of the oorsons :l.n command of t Pe armies involved "IJould, how-

ever, sto.nd on n footing dFfc·r ent from that of' the other members of the

!!Overnment. I would, therr- f ore, consider their r.ase separately.

Cf the ar.r.u sed befc•re us, the persons in command of the sever al armies

concerned are DOHIHARA, fl..ASP.IMOTO , H\· TA, ITAGAKI, KI MURA, MATSUI, ~ lUTO,

SATO and m~zU.

The r elevant. far.ts in r e spect of these persons are given below against

their rAsP~ "tive names:

1. DOHIB~RA : Comm~nde r-in-Ghief of Eastern Army jn Japan, 1943-L~ ;

• Co~e.nder-in-Chief of 7th Ar ea Army i n Singapore ,

1944-Aprll 1945 .

2. HASHIMOTO: Commander of Artillery Re~iment whi~h shelled the

11Ladybird 11, 1937.

- 1,109 -

3 . HATA:

4. ITAGh.K T:

5. KIMURA;

6 . MATSUI:

7 . MUTO:

8 . SATO:

9 . UMEZU:

Commander- in-Chief of Expeditionnry Force in Central

Ch:ina , July 1940-44.

Commande ::--in- Chief Jc.puncse Army in Koren, .July l941-

Mar0h 194 5; Commander-in-Chief of 7th Ar ea Army

Singapore , 1i.pril 1945- August 1945.

Cor.1mande1·-in-Chi ef of Japanese Army in Burma, March

19.1~4 to the end of the war.

Commander- in- Chi ef of J apanese -~'orca s in Chinn ,

O~tober 1937-Fobruary 1938 (Rape of' :t-.1anking­

Dec:ember 1937) •

Commander of the 2nd Guc.rds Division in Sumatra 1943;

Chief o.f Staff of 14th Ar ea Army in the Philippines

unde r Gcr.eral YAMASHITA in 1944.

Assistant Chief of St~ff of China Expeditionary

Forces, J nnuary 1945; then Commande r of the 37th

Division in Indo-China and in Thailand to the end of

the war .

Commander - in-Chief of the l'.wantung Ar my, 7 ?~1ovemher

1939-18 July 1944.

The evide'nce on the record would not ~ertainly entitle us to hold tha t

these commande rs ordered or authorized the doing of t he atrocious t hings

by the ~ersonnel of the a rmy under their 0ommand. The evidence certainly

is not such as would entitle us t o hold tha t these command0rs i n any way

instigated the soldi0r s to do t he se atr ocious thinl7s . I would, ther e fore ,

- 1,110 -

at the ve~r outset dispose of count 54 in this connection by sa~~ng that

the charge cont;1in~d therein in r espect of C"ivilinn popul ation has not b· ' :'1

establishe;d aga.mst any of tPe se accused .

There is, however, count 55 of the indi,..tment . It is n w<::ll-est~b1is'1··

ed pr inr.iple in crimi:1al l<n that liability may arise from omission us

vmll as commission, thoi.lgb it is often problematic as t o what circumstances

give rise to suc:h lb:l)ili ty for omission. The assimilation of omissions

to positive n.r. tions trJ~(3 c; plane only when there is a duty to ar.t . li'urther, '), I l

in order that .in omis::lion ma~r be r.riminal, we must be sure thc.t the evant ,_ '

was causally cnwectec't ··~i th the ine.,..ti vi ty.

In my oi'i.o5 on, thGs'"' r.ommanders ''J<:re l egally bound to mc.int ain dis-

cipline in the c.rrn;,· J.!.d J.:.o r estrain the soldiers under their command from

perpetr ating t he so af:.ro1~ i ties .

I t is true that r.. c:ommanc~ng officer is not liable for the ar.ts of

those in his can:m:md merely because he is their superior off'icer; but ,

because of his great control over them, he shoulrl be r .;sponsible for such

act s of theirs V!l:ich he could reasonably have prevent<=>d . t-Ie had the duty

to take such appropriate meusure~ as were in his power t o control the

troops under his r.ommand .

This , of course , ''lould not mean thnt r.. commander or a commander-in -

chief, in r el ation to th~ soldiers of the Drrny under his command, stands in

the same position as <loe.s a teacher in relation to his students in a r.lass-

room. We must not for~e-t the actual c r ea of oper ation of the army and the

normal machinn.ry provided whor ewi th the commnnder or the ~cmmander··in-chief

- 1,111 -

is 0xper.ted t o exercise t his control and on thA proper functioning of which

he i s entitled t o rely :ln this r espect.

Accused General MATSUI was the Commander-in-Chief of the Central China

Ar ea Army which was r esponsibl e for the Nanking fall. He r eturned t o

Tokyo in February 1938 when General HATA r eplaced him on 17 Februnry 193e .

On August 15, 1937 General M~TSUI was appointed Commander of the

Japanese Expedit:lonary I~orces t o Shanghai. On November 5 of the same year,

the Imperial Gener al Headquarters combined the -then existi ng expeditionary

force ::; t o Shanghai and the t enth nrmy t o f orm the Central Chinn Area Army,

and appointed General MATSUI to be its commander-~n-chi Gf.

It was th0. duty assigned to the Centr al Ch:i.na .Aren to be over the

headquarters of the ExpEldi tionnry Forces and of the Tenth Army, and unify

the command of' both a:-mies . 1'he duty consi sted in coordination of a joint

operation of both headquarter s , the ac tual management nnd command of army

strength being conducted by t he commanding officers of each army. In each

of the headquarte1r s besi.des the stuffs and the ad.1utants, there were the

ord?-'nat~ce department, the medinal department, the !udidal department etc.

But in the headquarter s of the Central Chi na Ar ea Army there wer e no such

personnel. (Exh. ~577, R.P . 38900)

The Imper ial Gener al Headquarters issued on De r.ember 1 , to the Cent r al

China Ar ea Army an order t o attnok Nanking in ~oncert with the Navy • . -j

On December 5, the headquarter1 of Central China Ar ea Army moved t o

Sooohow, 140 miles away from Nanking . General MATSUI was then ill but he

took action on important matterR in his sick bed having consultation with

- 1 ,112 -

his s t aff. (Exh • .341)

On December 7, another <"Ommandcr ·1a.s apnointed for the Expediti onary

Forces t o Shanghai. So, after this date, General ~~TSUI was the Commander­

in-Chief of the Central Chino Area Army which comprised the Tenth Army

under one Commar.der and Expeditionary Forces to Shanghai under another

Commander.

Before carrying out the order of Supreme Headquarter s to attaek

Nanking, General MATSUI issued orders to the Japanese For~es to the follow­

ing effe~t:

''That :f\Tanking was the capi tnl of China and the ~apture t her eof was an

international af' ':>air; tha t therefore , careful study should be made so as

to exhibit the honor nnd glory of Japan and augment the trust of the Chinese

people, and that the battle in the vicinity of Shanghai is aimed at the

subjugation of the Chine se Arrr.y, therefore protect and patronize Chinese

officials and people, as far as possible; that the Army should always bear

in mind not t o involve foreign rGsidents and armies in trouble ann mai ntain

close liaison with foreign authorities in order to avoid misunderstandings."

Wh~reupon the Chi ef of Staff of the Expedi t ionnry Fornes, IINUMA, and

others, immediately transmitted the above-mentioned order s to all offi cers

and men under General MATSUI's command. The Chief of Staf'f of Central

China Ar ea Army, 'rSUKADA:, and six staff officers under him, prepared an

order t o thn following effect.

1. The Central Chins Area. Army intends t o "apture Nanking Castle .

'2. The Shanghai Expeditionary Forces and the Tenth Army shall capture

- 1,11.3 -

Nanking in a~~ordance v:•i th the mc.in points as to the <'apture of

Nanking .

The !'lain pc:ints, in the order as t o the 0.apture of Nanking , r eferred

to above , were set out as fol:_ows:

1. Both Armies (Shanghaj_ Expeditionary Forces and the Tenth Army)

shall stop and prepare +'or r.aptur e of Nanking a t the point '3 or /+

kilometHrs away from Nanking Castle when they so far advan~e .

2 . On De~"'ember 9t h , s0att er f'rom airplanes, the bills advising

s urrender of the Chinese Army, stationed 'Ni thin the Gastle of

Nanking .

3. In r-ase of surrender of the Chinese Army, only the two or three

Jn battalions, chosen from anong the various divisions and military

police, shall ente r the castle and guard the assigned area within

•IT\. the castle ES indi ~"ated iH- tt:Je map . Espe0ially, per~er-tly ~o.rry

out the protection of foreign i nterests and cultural facilities ,

as indicated on the map .

4. In case of the ·::;hine se Army refus ing to surr€nder, l:legin attack

against ~Tanking Castle on the afte rnoon of Der.ember 10. Even in

this case, the movement s of the t r oops tha t ente r the castl e shall

be the same as described above , especially_making military

disQ.tpl ine and rnorali:~ very strict and restoring pea~"'e within the

~"astle .

Simultaneously with the preparation of the above -mentioned order, !!ll

~,!llitrur. tion -:1as formulated unde r the head "Matters tc be Borne in Mind

- 1,114 -

r egarding Capture of and Entry into Nanking Castle".

The substan·~e ther eof was as follows:

1. Entry of the Imperial Army into a foreign ~apital is a pr eat event

in our hj_story and one that is t o be perpetuated in history,

attrar-ting the attention of the world. Therefore l et no unit

enter the city disorderly; let the var:i.ous units of ours be care-

ful not to sheet one another; and above all l et them he absolutely

free from unla~~ul deeds,

2 . Let the discipline and morality of every unit be especially strict;

t her eby earning the rGspe~t and submission of the Chinese Army

for the imposlng air of the ImpArial Army; and insure that no act

whatsoever, whi~h t ends to disgrar.e honor, be perpetr ated.

3 . Absolutely observe off-limits of zone of neutrality especially

established by t he foreign diplomatic cor ps, ex~ept +'or cuses of

ne~essity, disp)sing sentry on needed points , to say nothing of

absolutely r efr aining from encroaching '.lpon foreign rights and

entry int o Chungshan Mausoleum and thE: cGmetery of other Revolution

her oes as well as the Mausol eum of E'llperor HSIAO, Ming Dynasty,

i s r;tr:..c: tly prohibited.

4. The un:... c.<; to enter the Castle sh.all bn 0nes especi aiJy chosen

for t hat purpose by the division commanders concerned; l et them

know beforehand t he matters t o be remember ed and the positions of

f orei gn rights and interest s in the Castle ; l~t them be absolutely

- 1,115 -

free f::-om plunder; dispose sentry, if needed.

5. Plundering and causi ng fires, even carelessly, shall be punished

severely. Together with the troops, l e t many mili ta:ry police and

auxiliary pol :l~e em:.er the Castle, and thereby prevent unlawful

conduct.

On De~ember 17, General MATSUI entered Nanking and learned from re-

ports that, notwithstanding his stri~t warning, there were breache s of

military di sc~pline and morality. He ordered strict oomplianoe with his

former o:rr1e:r::; ::n ·~ "t"cr:oval of the troopn in t~e Castle to the reRion out-

side th~? Gt.t~ L'l e . 'J'.'";l'K·\DA. C'-:1i ef of Stc.~'f, and his subordinate staff

offioer '3, invc ft i gaJ.:.cd the ~uartAring capacity in the re,c;ion outside of

the Castle bm~ f ou.nd that '!-.h<3 r egion c onr.ern.3d we.s ur:.fi t for quartering

tro0ps . (Exh . 2577)

On DecembPr 19, ther efore, the Tenth Army was ~ent back to the Wuho

area of the She nghai Exped5 tiona17 Fornes , The 16~h ))i vision, alone, '!l'as

assigned to r 0:1 a :in j_r. t•Jan!<:i n5 foz '5Uard ~·Jty FP1U thf·· othJ r units were

oroer ed to evc.Lo •-"<\ t c , one a! t.:;r another , ~n thE> nor t Lsrn sl.or e of the

Yangt ze ~nd Shanghai a r ea . (Exh. 3454)

After thn 'J"lne ,..El had r eturt1Cri t.o S~n.ng~1rj_ wi-:Jt his staff officers,

On hea:-i~ .... g th:•. c ; he r. < l~ C'r~~(" a staff o ."':•_:-,, r ···.n ··~ransrr.it t~'~ f o'l :.owing in-

st.ru,.. ti0n to t.h0 Ch:' t;( of .Staff of the Expedi t.iona:-y ~orr.e to sr.anghai on

the <6th or the '??tr of D,> re··.lber:

Japanese troops . As I gave instructions on the o~casion of the entry

~eremony into Nanking, no such acts should be taken under any ~ircumstances

for the honour of the Japanese Army. Especially, be~ause Prince ASAKA is

our Commander , military discipline and morals must be even more stri~tly

maintained . Anyone who would misconduct himself must s P-verely be punishe~ .

As for damage done, measures should be taken that they may be compensated

or returned. 11 (Exh . ?.577)

The steps thus taken by General MATSUI proved ineffee1tive . But there

is no suggest i on that these wer e in any way insin~ere . On this evidence ,

I cannot ascribe any deliber at e and r eckless disrep,ard of l egal duty on

the part of General M.!1TSl1I ir. this respect.

The Prosecution l ays stress on the fact that there was an inadequate

number of punis hments i n thi8 case . As I have pointed out above, a

commander-in-ch~ef is entitled to r ely on the efficient functioning of the

machinery supplied for the purpose of en~orcing discipline in the army.

The army certainly was provided wi th personnel whose function it was to

prosecute the o+>f ende:·s . It i s in evid~nce thc> t this part of the machinery

did function .

I do not believe that it is the function or duty of a C"Ommander - in­

ohief to proneed to p~ose~ute suc h offenders. Ther e wer e rumours andre­

ports of atroch,ies corning to the nommauder-in-~hief . He adequately ex­

pressed hi s disapproval, and he was entitled ther eafter t o r ely on the

t wo r.ommanders of the t wo a~1ies as also on the other high official s

char ged with the duty of maintaining di scipline and meting out justi~e. We

- 1,1:1.7 -

-

PART VI

WAR CRIMES STRICTO SENSU

in r el c..tion to

PRISC~:ERS OF WAR

must also remember that General MATSUI was ill at that time and was re­

lieved of his duty within a few weeks of these oncurrences.

The position of a commander-in-chief of any army would be intolerable

if he be not allcwed, even for such a short period, to wait and see whether

the machineries are adequately fun~tioning . In my judgment, the evidence

does not disclose any such inaction on his part as would entitle us to

hold him ~riminally liable for v;hat haopened at Nanking in respent of the

~"ivilian population .

So ~or as this part. of tre case is ,..oncerned, ther e is no evidence

against DOHII-l.ARA, HI~SHIMOTO, ITAGAKI and UMEZU . As I have shown above, no

satisf'a,..tory eviclenl"e of' atro" i ties towards civilian population by the

troops under the:'Lr command during their ~ommand could be addu~ed which

would entitle us to as,..ribe any sunh act to any ~"riminal omission on their

part.

As regards HATA, the evidence is that after the Nanking Inddent

MATSUI returned to J apan in February 1938 and Gener ul ~\TA sur.cr-eoed him

on 17 February 1938 . Since then the atroci'._ous conduct was notably

brought under control though t here still were some stray cases. In my

opinion, the evidence would not justify a finding of ina~"tion on the part

of General HATA and would not sustain an inferenl"e of any causal connel"tion

of those stray in~idents with any inal"tivity or omission of the Commander­

in-Chief .

I have given above my view of the evidence relating to the atrocities

alleged to have been committed during subsequent crunpaign. The Prosecution,

- l,ll8 -

in my opinion, h&ll failed to establish this part of the case.

In my judgment, therefore, O.CI'\Uscd HATA should be found not guilty

of this charge .

KIMURA was Commander-in-chief of the Japanese Army in Burma from March

1944 to the e nd of the war. N'' satisfa~tory evirlen~e of any atrocities

perpetrated against the dviliun population of Burma durinr, this period is

on r ecord which would entitle us to ascribe such nets t o any criminal

omission on the part of this a~nused.

SATO was Commander of the 37th Division i n Indo-China and in Thailand

from .Tanuar:t 1945 to the end of the war. The evidenre adduced. by the

prosecution r egarding the maltreatment of the civilian population ther e

during this period is worthless nnd I do not consi<kr it safr to act on

such evidence .

MUTO was Commander of the Second Guards Division ln Sumatra in 1943

and Chief of Staff of the 14th Ar ea Army in the Philippines under General

YAMASHITA in 1941+-• There is ENidGnce of atrocities towards the civilian

populations of Sl.lmatra and of the PhHippines . The evidence on r ecord re-

luting to such atroci ti13s in .Sumntra refers to .1. period prior to ''!UTO 1 s ft'._._

command . As r eR:ards?- Philippines , Exhibits 1355 to 14P9 v1ere givEm in

evidence t o est ablish these ants of ntr ocities . 1/ifi tnesses Wanda 0 . Warff,

s . B. Moody, Don:lld F . Ingle, gave evidence in Court about these acts .

Genr?rol YAMASHITA was in ~ommand of tho Army and ho has already been tried

und punished for these acts.

MUTO was the Chief of Staff of the imny. I havo alreo.dy gi von my

- 1,119 -

reason nhy I r-o.nnot make any of the authorities r -:sponsiblo for wha t was

happening in the Philippines at that time .

I donot think the shel ling of the 'Ladybir d ' is within the competence

of this Tribunal to try . The metter was completely settled long before

the prosent v;c.r commenced . The Pr osecuting Powers would have been v;ell

advised not to seek thus to reopen such sc:>ttlP.d matters . Undoubtedly it

would have been more dignified and -;r~lC~eful on their part to r efrain from

raking up mo.tt,...rs which they themselves ~ot settled otherwise to their

complete satisfaction, even if they had nothing cls~ to complain against

their vanquished en6my.

- 1 , 120 -

I would now take up the ~barges in Counts 54 Gnd 55 of the Indir.tment

in relation t o the prisoners of war.

As I have noticed before, the crimes o.re mentioned in Appendix D of

the Iniiictment. Sections 1-8 of Appendix D emumerate such nrimes.

The f'lrimes are alleged to be in breach of the laws and customs of

war including those contained in the ~onventions, assuran~es and practine ~

referred to in Appendix D.

The laws and customs of war and the conventions, e.ssuran~es and

prarti~es that a::-e r eferred to in .Appendix D are the following:

1 . The l aws and customs of war o.s established by the pra~tice of

rivili zed nations.

2, The Convention Ho . 4, done at. The Pague on the 18th of Ontober

19Cf7, l')oncerning the laws and customs of war en land.

(a) The r egulations set out in the annex to the said Conventien

and forming part thereof.

3. The Conventioh No. 10, done at The Hague on the l$th cf October

1907, concerning maritime war .

4. The international r.onvention relative to the trf'atment of

prisoners of war, done at Geneva on the ~7th of July 1929 (here•

innfter called the Geneva Convention) .

(a) Although .Japan did not ratify the said Convention, it beee..me

binding u·oon her .

S. The international convention for the amelioration of the condition

of the wouhded an~ sick in arMies in the field, done at Geneva

- 1,121 -

on the ~>7th of July 1929 (known as the Red Cross Convention).

6. The assurances as per communications signed by the li"orei~n

Ministe:~ TOGO .

(a) (i) Communicati on dated the ~9th of January 1942, signed

by TOGO and a~1ressed to the Swiss Minister in Tokyo,

assuring t nat the Geneva Convention will apply ~atis

rout~~ t o ,\meric3n prison3rs of war.

(ii) A communi~ation dated 30 January 1942, addressAd tc the

Argentine Minister in Tokyo, assuring that the Geneva

Convention will be applied nmtat~ mutandis to English,

Canadian, Australiun and New Zealand prisoners of war.

(b) A communication dated the 29th of January 1942, whereby

J apan assured that she observGs strirtly the ~ed Cross Con-

vention.

(c) A communication dct ed the 13th of February 1942, s igned by

TOGO and addressed t o the Swi ss Mi nister in Tokyo, assuring

that the Impar :.al Government will apply during the present

war, on eonditi on of r eciprocity, the 1Jrovisi ons r ol ative to

t '1e treatment of prisoners of v1ar of the Convention of ?7

July 19?.9 to enemy civil i an internees.

(d) The above ment:loned assurances wer e r epeatEd by the Japanese

l<'orGign Minist•: r on sevE>ral orcasions, as recently as the

'26th of ~.ay 1943.

Coming t o the particulars of th~ breaches of t hGse conventions and

- 1,122 -

assur nnr.es, the Proserution gives them in eight se~tions.

Section 1 of Appendix D ~harges inhuman treatment, contrary to Arti~:

4 of the Annex to +,he Hague Convention 4 of 1907 and the v.rhole of the

Genev~ Convention 1929 as al so to the said assuranr.es .

Sertion 2 charges illegal employment of prisoner s of war l abour,

contrary to Arti0le 6 of the said Annex to the Hague Convention and to

Part 3 of the Geneva Convention as also to the said assurnn~es.

Sol'ltion 3 speaks of r efusal and failure to maintain prisoners of

war, ~ontra.ry to Artit'le 7 of the said Annex to the Hague Convention and

Article 4 and Part 3, Article s 9-12 of the said GenevR Convention .

Sertion 4 complains of excessive L'.lld ill egal puni shment of prisoners

of wer, aontra.r;r to Article 8 Qf the said Annex ta the Havue Convention,

Part 3, Seotion 5, Chapter 3 of the said Geneva Convention .

Section 5 deals with mistreatment of thE: sick and wounded, medicRl

pe~sonBel a~ female nurses, o~ntrary to Article 3, 14, 15 and ?5 of the

s aid Geneva Oonvention e.~d A~tic1es 1, 9, 10 and 12 or the sajd qed Cross

Ctnvention .

Section 6 AOmP.lains of humiliation of prisoner s of war , especially

offiaers , n~tr~ry to ~rticle 8 of the said Annex to the ~ngue Convention

and A~tioles ~, 3, 18, 21, 22 and Z7 of the Geneva Convention.

Sertion 7 ohar.ge~ re~usal or failure to collect and transmit infor­

mat i on re prisoners of war a nd r eplies to inquiries on the subi eot, con­

trnry tl) Article 14 of the said ..;..11nex to the sc.id Hague Oonvention and to

Articles 8 and 77 af the Geneva Convention .

- 1,123 -

Se~tion $ speaks of obstruf"'tions of the rights of the protecting

powers, of Rod Cross soc~ietieB, of prisoner s of war and of their represent~

a ti ves, oontra.ry to Arti cle 11) of the said Annex to thA said Hague Con­

vention, and to Articles 31, 42, 44, 78 and 86 of the said Geneva Conven­

tion.

In its summation of the evidence, the prose~ution claimed to have

est ablished the following:

1. That the war crimes, of which evidence has been given, were in

fact committed;

2. That tr.ey W8 r e committed in some ~ascs as n part of tho ?Olicy of

the Jnpanese Government;

3. That in the r emaining ~t\ses the Government was indifferent as to

whether they wer e committed or not.

The prosecution used the expr ession "Japanese Government 11 in this

connection in a very wide sense a s embracing not merely members of the

Cabinet but also senior o:rfiners ~ ~he army and navy, ambassadors and

senior career public s~rva.~ts.

The evidence is oveMvhelming t o establish maltreatment' of the prisonorr

of war in va.ri~us ways. It ~ill serve no useful purpose to discuss this

evidence i n detail. The actual perpetrators of tncse brutalities ure not

before us. 'l' ....... :;e ot· +,hem who could be got hold of alive have been adequate•

lv .... calt with by the allied powers.

We have now before us a different set of persons, who V!ere at the helm

of affairs in Japan during the \var end who are sought to be made r esponsi-

- 1,12.4 ..

bJ.e f or those brutal atrot:'itie s roughly on the ground t hat these wer e tho

r esult o~ the policy adopted by Japan nt their instance i n making the ~o.r

in t het ruthless manner.

Tho alleged criminal acts committed in r el ation to t he prisoner s of

war ar e not all of the same cat egory. They ar e not all criminal E£r ~·

Some of t hem ar '3 allegP.d t o be crimi nal by r eason of their being in

violati on of the conventions and assurances . other s ar o all eged t o be

crimi nal J2£r _§Q . We shall have to keep them distinct f or our pr esent

pur pose and see how far we can meke any of the presc>nt accused r. rirninally

l iable f or such act s .

Mr . Carr f or the prose~ution invited us t o hol d t he ac-cused crimi­

nally liable bceause of the following far.tors: -

1 . (a ) That the Gover nment of Japan wcs i n eff£>ct bound by the

Geneva Conventi on of 1929

or (b ) f ailing t hat,

(i) They wer e unquestionably bound by th<' Hague Conventions

Nos 4 and 10 of 1907,

(ii) All t he oonventions ~re mer el y dcr.l ar atory of i nter­

nat:l.onal l aw.

2 . ( o. ) That the prisoners of •:mr c.r e in the power pf the capturing

Government and not of the individual s or <10Pps whiGh capture

them.

(b) ( i ) No Government or member of it oan evade r esponsibili ty b:·

trying t o shift i t on t o a parti cul ar department,

- 1,125 -

(ii) The main r esponsibility r emains with every individual Cj

.!J.'!f_l'}~r of the "'overnment.

3 . (a ) /~U f•<"!"srms ~. ho hav·e power to control the acts of others who

c;o:.lfi!~. -. t::ce:t.:he s oi t;1e l av.s of v1ar

and (i ) v.rlco, ktKv!.:::-:g '!:.h::rt s ·wh brenches have 'Jeen ~ommitted,

t ,.: .. kJ no steps t o p!'event their r epetition or

~ ii) ·aho,. hr.:.vinr: r·ea3on to anticipate violation of the laws

.-:f >KT ry jler;;;on :~; tn·d.e r thei::- control, fJ.il to take

·.::l o·.~t.r J,•e-=t:..t:· ···· 3 ;o p:::-event thei!' o~nurrence or

( :::.i l) ·."r,o> ha'line: 't d.r! y 'tO ensure thu.t their colleagues con-

form t o the lRws of war, negl ect to perform that duty

nra themselves ~uilty of of fenses against t he laws of

I'Iar.

(b) In fixing r esponsibility for violations of the l aws of war

upon such per sons , it may be ne~essary that they should have

knowl edge

(i) that the atrocities are likely to be committed

or (ii) haV'3 been 0ommitted.

(c) Once it is shown that a oerson

(i) has the knowl edge

or (ii ) ought to have tho knowledge that atro0ities are likely

to be committed or have been committed by others, a

duty immediately arises to exercise the power of con-

trol,

- 1,1 '26 ...

. / l L > t-$

(iii) ~ duty to bring the matter before the cabinet,

and failing to get satisfaction, to resign.

(d) (i) No person can rid himself of responsibility if he

deliberately omits to make enquiries.

(ii) 111hen a state of things is widespread and notorious,

there is a prima facie presumption of knowledge which

calls f or r ebuttal by the defendants.

As r egards the l aw applicable to the case, the prosecution r eferred

us to Appendix D of th(~ Indictment and submitted that its legal argument

on this subiect was fully set out there.

Appendix D gives in its paragraphs marked 1, 2, and 3 the relevant

provisions of the conventions and r egulc. tions r elied on by the prosecution

in this r csoect. I have ~iven above the conventions and assurances nameq

therein.

As r egards the applinability of the Geneva Convention of 1929 the

proser.ution position is given in the Appendix thus:

"Although Japan did not ratify the said Convention, it became biodine

upon her for or.e or mere of the following r easons:

11 (a) It v1as signf;d on the said dat e by or on behalf or forty-seven

n~tions, in~luding J apan and each of the nations bri nging the

<'!hn.J•gos i n this Indictment, and r atified by ovor forty nations,

and thus bEH~rune part of evidence of the Laws and Customs of

rt(b) A "Ommunir'ation dated the 29th January 1942, signed by TOOO,

- 1,1?.7 -

-

Shigcnori, one of the QCCUsed, as Foreign Minister on behalf

of Jap3n, addre ssed t o the Swiss Minister in Tokyo, ~ontQinod

the following statement:

' Although not bound by the Convuntion relative to the Tr eat­

me~r:·. of Pr isoners of Wo.r, J :-tpan will apply mutatis mutandi,2,

the pr ovisions of th~t Convent ion to American prisoners of

war . 1

11 In a communir.ation d~t~?d on or c.bout the 30th J:lnuary 1942, addressed

t o ~.he Argentine Minister in Tokyo by TOGO, Shigenori, one of

tho accused , as Foreign Minister on behalf of Japan, it is

stat ed:

'The Imperial Government has not yet ratified the Convention

of ?.7 July 1929, re~arding the treatment of prison0rs of war .

They are not t he r Gfore subject to tho said Convention. None

the l ess , they ''lill apply mutatis mutandis the conditions of

that Convent ion t o English, C~nadian , Australian and New Zeal and

prisoners of war in their power. ,. ith regard to supPl y of food

and clothing to prisoners of war, they r~ill consider on con­

dition of r eciprocity national and racial customs of the

prisoners . 1

"By the said communications or one of them, ,Japan a.cceded to the said

Convention in £tccord . .:mce with Article 95 thereof, and the state

of war then existing gave immediate ef'""ect to such accession .

" (c) The said communications r.onstituted assurnncAs to the United

- 1,128 ..

St~tE:s of America, the United Kingdom of nr eat Britain and

Northern Ireland, Canc.da, Australia and New Zealand, to whose

governments the said communications r1ere intended to be, and

were, repented by the res~ective recipients thereof, and in

each r,ase to all nations who were at wo.r with Japan .

"Except in the said matters there are no provisions of the said

Geneva Convention to which the expression 'mutatis mutandis' could properl.

be applied . 11

As regards the International Convention for the Amelioration of the

Condition of the Wounded and Si~k, the Appendix asserted thus:

"Ja-pan was a party to the said Convention, together with over f orty

other nations, which thus becc..me part or evidence of the I.a.ws and Customs

of War. In the ~bove mentioned r.ommunication dated on or about the ~9th

January 1942, Jap~n stated:

"'Japan observes strictly thC' Geneva Convention of '27th July 1929,

r el ative to the Red Cross , as a state signatory of that Convention. 1

"A commun:.nf1.tion dated the 13th February 1942, signed by TOGO,

Shigenori, one of the accused , ns ~orei~n Minister on behalf of Japan,

addressed to the Swiss Mini ster :i,n Tokyo, contained the folloning s tate­

ment :

"'The Imperial Government will apply durinP,: the present war, on

conditi on of r~~iproc:Lty, the provisions r al ntive t o the treatment of

prisoners of \'lar of the 27th July 1929, the enemy civilian internees, as

f ar ns npplin~'ole to them, nnd provided that lnbour will not be imposed upc

... 1.,129 -

t hem contro.r y to thoir free choice,'

"The said communi~o.tion constituted nn nssuranre to all the nations

o. t v7ar VTi th J a. pan, (who in fant carried out the provisions of the said

Convention as appli~able t o Japanese civilian internees) other th~ the

Republic of China.

"The above -mentioned a ssurtmcos wer e r epeated by the .Tapunese Foreign

ff.inistry on several oc~asions, as 't"ecently o.s the ?.6th May 194.3." •

At the final summ~tion, the prosecution ascribed a sinister signifi-

<'ance to th8 f actum of non-ratificRtion b~r Japnn of the Geneva Convention,

which would indeed hnve a pertinent bearing on the question just bef ore

us. According to the prosecution, ther e had already been the overall

conspiracy for aggressive war at t he time when the questi on of r atifi0ation

of the oonvention r.ame up o.nd t he r atification was opposed o.nd ultimately

denied because the opposing ~roup had already formed this policy of brutal

treo.tment of the prisoners t aken during the designed war.

The Prosecution sericusly urged t his contention o.nd adduced evidence

in sup~ort of it.

J apan had signed the Geneva Prisoner of War Convention in 1929 and in

1934 the question ar ose as to v1hether the Emper or should ratify it. The

Army and Navy petitioned r.gr inst. r atification, the ~ro.vy supplying r easons

f or its petition (Exh • .3043 and .3044, pp . 27177-$1).

The documents embodying these reasons or e summarized by the Prosecution

as foll ows:

1. The obligc.tions ar e unilat er al since no Japunese would become a

•. 1,139 -

prisoner of war;

2. Article e6, enabling Protecting Powers to interview prisoners of

war without observance would be dangerous to military security;

3. The ratification of the Convention would double the range of

enemy aircraft ns, hewing completed their mission, the <'rev; ~auld

l und on Japnnese territory se~ure in the knowledge that they would

be well treated;

4. Prisoner~; of war could not be so severely punished as Japanese

soldiers , and this ~ould involve a revision of Japanese military

·'lnd naval disciplinary codes to put them on an equal footing, a

revision which was undesirable in the inter est of discipline.

The Prosecut::.on then contends that t he ob,iections are b~seless inas ..

mu0h as the Geneva Convention practically stood on the same ~ooting as the

Hague Convent ion of 1907 ,, whioh had been ratified by Japan .

The Proseout:'.on sr.ys: "The only penal provision of the Heguc Conven­

tion relevant to our present purpose is Article 8. This corresponds almost

in terms with Articles 4~5 and 50 of the C'eneva POW Convention of 1929 o.nd

so in that respect the two Conventions may be said t o oancel out each other.

The only other material provision restrintive of punishment in the Geneva

Convention are those oontained in Article 46 -- '/my corporal punishment,

any imprisonment i n quarters wl thout daylight and , in general, any form

of cruelty is forbidden. Corroctive punishment for individual acts is also

f orbidden'."

"It was these r estrictions that the Jnpnnese Government wished to

- 1;131 -

p..., t.H 7. ve avoid . It wished tc .. ~ the right to ill-trea.t prisoners under the

guise of punishment and so to deter airmen from raiding the country. The

ill-treatment of prisoners was t c be a matter of government policy. 11

It should, however, be r emembered that these r easons were given not by

the Government but by the Navy, 5.nd that was done in 1934, long before ttn

war commenced.

The Army also objected t o the ratification, but, without giving any

specific r eason. (Exh. 30L.4)

TOJO dealt with the Goneva Convention in para~raph 132 of his

affidavit thus:

"As to the Geneva Protocol, it VJO.S not ratified by Japan . As a matter

of fact the Ja.panesG conception r egarding prisoners of war differs from

that of Europeans end Amer :Lcans . Furthermor e , differ enfles in every day

living conditions, as well as customs and manner s between Japanese o.nd

other nationals, together with the enormous number of prisoners covering

such a vast nr E'a and embro.eing muny differ ent ra,.es, plus the a.m,te s hortage

of various material s and supplies , made it impossible for t his nountry to

apply the Geneva Pr ot ocol verba t i m.

"The stat ement that the Japanese conception r egarding P . 0 . 1~ . 's differ s

from t hat of Europeans and Americans means that from annicnt times the

Japanese have deemed it most degTo.ding t o be taken prisoner, and all combat-

ant s have been instrunted to choose death r ather than be captured as a

P.O.W. Such being tho case i t was flonsider ed that a ratifination of the

Geneva Prot ocol would l eG.d public opinion to believe that the a.uthori ties

... 1,132 -

encouraged them t~ be ~a:::>tured as prisoners , and th"'r e 'ms f'enr that such

n r:J.tifi~ation mi~ht confli':!t "lith the t r aditional idea r.on~crning P .O .W .'~:

and this fenr had not been dispelled up to the beginning of this war . In

r e sponse t o an inquiry from the ~oreign Offi~e r egarding the Geneva Protocc

t he War i:.inistry r eplied thc.t ::tl though it r.oula not n.nnoun~e r.omplcte

adherence to this Protoc ol, it perceived no ob~er.tion t o the appl ir.a tion,

;~:ith n~r.essary r eser vations , of its stipulations r.oncerning Prisoners of

Wnr. In J nnuary 1942 the For eign rninister announced through th~ Ministries

of Swit~erland ar.d Ar gentine th~t J apan would apply the Proto~ol with mod­

ifir.ation (Junyo , (Exhibits 1469-1957). By the t e rm ' apply with moclifica­

tions1 (Junyo) the J a pru:.e se Gov~rnment meant that it would apply the Geneva

Protor.ol with such changes us might be necess~ry t o r.onf orm t o the domestic

law and regulations a s ''Jell as the prar.tir.al requirements of' existing con-

di tions. . . "

It must be remembm·ed thett in 1S3/+ the OKADJI. Cabinet was in office.

Ther e is no allcg~_tion c.gainst this Cabinet . Tb.e only ar-,..used who was in

this Cabinet is HIROTA. He was Foreign Minister in it . It is not even

suggest ed by the proser.ution th'lt t his Foreie;n Ministe r hc:td any hand in thi ·

non-ra tifica tion. The then Wnr Minister c..nd Ne.vy Ministe r ~re not alleged

to have been in the oonspirntoria l group. The then Prime Mini ster OKADA

hr..s given evidonee in this nase on behalf of the prosecution . Jl;ot c::. word

!'.bout this non-r~tificntion wa s put to him .

As I ho.ve pointed out already, in 1934 neither the Jn.panese Gove rnment

nor the Army nnd the Navy wor e r.ontem?l cting t he Pncific War. At any r ate

they cannot be credited wi th c.ny foresight of the axtrnordinary phenomena.

- 1,133 •.

t hc.t took pla~o during this war •

.An unusuall y l a r ge number of troops surrendered during this war . Some ­

times the surrendered army rm.s much l arger then the Japanese army on the

spot t o l'!hi0h the surrender was m:1.de . Last yea r an ac~'ount was publi shed

in merica of a Secret Session of British Par1irunent in which Mr. Churchill

stctod thc.t 100,000 British in Mal c.ya. surrendered t o 34,000 .Japanese . This

extraordinary fact made tho administ ration of the prisone r s of' wnr n r eally

diffi~ult one c..nd ~ontributed l argely to nho.t happened to thes~ prisoners .

J shall denl v1i th t his mnttcr l o.t.e r. It is r..bsurd t o suggest t hat the

Jn:p .. '1.nese wore 0ontemplnting nll this in the year 1934 and i'lerr the r efore re­

fusing t o ratify tho Conventiorl .

In order t o npPr €d a.t o the r easons given by the Army nnd the Nc.vy for

r eremme>1t'l.ing non-ratifi~'ation of thr, Convention , we must not +'orget the

J~panese no- surrend·;::r policy , 11 .\.ny oc~'id(mtal a rmy which has done its best

and finds itself fa~ing hopel ess odds surrenders to the enemy , they still

r egard themselves as honourable sol clio rs and by inte r nr.tional agreenent

the i r nrunes a r e sent back to t heir ~ ountries so th::tt their f~milies may

know th~t they ar c 2live . They ~re not disgrc.ced either as soldiers or as

C'\itizens or in the ir mm f nmilies • 11 But t he Jn.pnnese define this situc.tion

differently. With them "honor is bound up ~vith fighting to death" . "In a

hopel ess s:i tu.1.tion a J1.panese soldier should kill himself with his l as t

ho.nd grenade or rhc.rge weaponl ess o.go.inst the enemy in a mass suir.ido

nttar,k , But he should not. surrender . Even if he <Jer e to...lcen prisoner when

ho '.vas "'!Ounded and unc:onscious , he r ould not hold up his head in Je.pan again;

•. 1,13/+ -

he >m.s disgro~ed; he r:as dead to 1-!is f ormer life . • " Ther e \'Ins no need o1 t"11. cl. 0 (. t.,_~ J t. (~·~-;_ (! .....

spe~inl offi~"iul ·· · ' · ''.on r. t the front ab out this. "fhe 'lrmy lived up

t o t he code t o su~h :m ext ent tha t in t he North Burmr. nampai gn, the pro-

portion of the ~aptured to the dead was 142:17 ,166. Thc.t ::as n r atio of A

1: 12Q, md of the 142 in the prison (}amps , all exocpt 'l small minority r;orr

wounded or unconsf}ious when trtken; only c. very f ew had s UITender ed singly

or in groups of t ·:1o or three . In the nrrnie s of .... oc~idental n:'.tions it

i s o.1most a truism t hnt trocpE r.nnnot st.:md t he deat h of one-fourth t o ono•

t hi rd of t hoir strength 1.-it hout giving up; surrender::; run nbout 4:1." Thi s

i s whnt Miss Ruth Bencdl r.t sa;,'s . Miss Ruth •'encditJt was nssip.;ned by the

Ur.itsd State s of fic e cf War Infom:~.tion in 1944 t n the study of J : pan,

This indi~a t.es the real f eeling of the J apc.ne sc c:..rmy ~nd no.v<J o.nd ex-

pl~ ins their opposition. ,Tust.ifinble or not, thi ~ wr..s the J apo.nG so mental

m·1ke up and the J. edsi0n ns to non-rc.tifir.c.ticn ··:as arrived a t on a onr oful

~onsiderntion of what OCI'\UITGd t o them t o be worthy of r.onsider a tion.

Ri~?htly or ·.-.Tangly, Japo.n r.onsidcrod t hese rule s ns likely t0 r e t e.rd the

efficiency of ml.li t nry oper c ticns. The r cr.l son,..tion of tl~e rules of wnr

is ~on s idercd t o lie in the f ac t tho.t their obse rvance is in tho inter est of

all ~ cn~"E.:rncd. It is indeed :1bsurd t c suggest th.::t in 1934, tho .Army c.nd

t he Navy wore dosigning t o rnd tr<-~.:1t t be pr isoner s o~ future rm.r 0r war s .

I ~nru10t c.r'cc pt thn Prc~;ecution ~"nntention thn.t , by the ~ommuninntions

r eferre d to in ,\ppendix D, ._T :tpan c.~~eded t o the Genevo. nonvc!1tion in

n~(lordnnr,e v1i th Article 95 thereof.

The Gcnev~ c onvention, by its Arti~lo 91, r equires thnt t 1e conventi on

- 1,135 -

shall be ratified a~; s oon a.s possible.

Article 93 provides that the convention shall be open f or adherenr.es

given on behalf of a.ny ~ountry ir, whose name this r.onvention was not signed.

Artir.le 94 provides how adherence shall he given by written notifi-

cation addressed to the Swiss ~ederal Council •

.Artir.le 95 says that a. state of war shall give i mmediate effect t o

r atifications deposi ted and to adherenr.es notified by belligerent powers

prior to or after tl:e outl:>roak of hostilities .

As the convention stands, Japan being one o~ the original signatories ,

no question of adherence can arise in he r case . Adherence is open only on

behalf of a country in whose name the convention was not signed . F'urthe r,

the formalities requi r ed by A:r.tir.le 94 were not o"Jser ved in this case.

The convention had to be ratified by Japan . Admittedly, Japan did not

ratify it. Article 95 , there~ore, has no applir.ation so ~ar as Japan is

concerned. Japan neither deposited r atifications :1or notified adheren~es .

Of course, in my view, adherence was not at al l open to Japan .

The question whether the convention would have any 0

l egal~ bincling effect

on Japan be~ause of its having been signed on behalf of that country would

really depend upon hJw VJe interpret Articl e 92 of the convention.

Art icl e 92 says: "The present r.onvention shall ber:ome eff e r.tive six

months after the deposit o.f at least t wo instruments of ratifir.ation . Sub-

sequently, it shall 'oecome f3f f e r.ti ve for each high contr acting party six

months after the deposit of its instrument of ratifir.ation."

The minimum num'oer o.f :Lnstruroen ts of ratification required by this

- 1,136 -

article had been deposit€~d and consequently the nonvention became ef'fective

Japan was one of the high contranting parties in the sense that the con­

vention was originally signed on her behalf; but, as there was no deuosit

of any instrument of rat:Lfie1ation on her behalf, the covenant could not be

effe~tive for her.

As I r ead Article 92, this nonvention, without the instrument of

r atification, did not become effective in any way so far as Japan is con­

cerned, Reading the whole convention, I cannot construe this Article 92

to say that the effect of non-ratification by a contracting party only pre­

vents that contrr..~ting party from being benefit0d by the convention; it is~

however, binding on it e:ven without its own ratification, provided the

l east number of i nstruments of ratification are deposited as r equired by

Article 92.

I, therefore , cannot af'cept the Prosecution contention that, as Japan

was a signatory to the Geneva convention and as the Geneva Convention has

been other wise ') ffective with:".n the meaning of lrtiole 92 , it has been

binding on Japan though , because of non-ratification b.v her, it has not

become effe~tive ~ hc:r benefit. In my opinion, the c onvention as such

has not become effective d ther for or against Japan.

The Prosecution next contends the.t the nonventi on did n0t lay down any

new law or rule of war but only enQ~ted what was alr0ady the recogni~ed rule

of vtarfare. I am afrnid J find some tiiffioul ty in ac~epting this viev1.

Articles 9>96 would go against this oonte:.tion. Article 96 r esr.;r ves

f or each of the high ocntracting parti es the riP,ht t o denounce the pr~sent

- 1,137 -

~onvention . The hign contra~ting partie s seem t o have understood that they

were entering into an agr eement i n ~spcct of thE'l sub,i ect matte r o 4" the

c onvention and that the r eby they .ver G creating new l eeal r Al ati ons bet,•1een

them in respe~t of t he matter dealt with in the convention.

The correspondence relied on by tho Prose cution does not, in my

opinion, make the Geneva convention apolicable to the case .

At the ber,innir_g cf the r>acific War, the allied pmyers enquired of

J apan whether or not she would apply the Geneva convention. Exhibit 1468,

da t ed December 1?, 1941, i s the C,S. notG in this r espect and Exhibit 1494,

dated Janua ry 3, 191~2 , is the U.K. no t e on the same subject.

The Japane se Fol"eign O.ffi0.e r equested the opinion of the War Ministry

and obtained the f cllov1ing r eply:

"In view of th•3 f act that the Geneva Convention rel~ting to POW' s was

not r a tified by His !\11.aje sty, we ean hardly a nnounce our observance of the

same , but it would ·oe saf e t o not ify the world that we have no objection

t o acting in a~'~ordance in the k ea tment of POW 1 s,"

"The 1929 Geneva Convention, r el a ting t o POW 1 s, has no binding power

whatsoewr on Japan. But this Hinistry has no obj ection t o applying the

prinojple s of the Convention to noncomba t ant internee s within such limits

as it is o.pplicable , provided, however, th<J t no per son be su'b,i ectF:d t o

l abor against hi s will." (Exh. 1958)

After these del i b8rat.ions, the follcning r cpl :)' was made to the United

Kingdom on Janua r v "29 , 191,.2:

"The Imper ial '.:love r nm0nt he. s not ye t r a tified the Convention rda ti ve

- l,lJP -

to treatment of PCW 1 s, of 27 ,July 1929. It is, therefore, not bound by

the said convent:ion. Hov1ever, it will apply mutatis !!llitandi!l provisions

of the said Convention to English, Canadian, Australian and New Zeal and

POW's in its hands."

"As to provisions cf food and clothing for POW's, it v:ill consider on

conditions of reciprocity, the national and racial customs of the prisoners.

(Exh. 1956)

Simil ar reply wus given to America also on February 4, 1942. The reply

stood thus:

"Japan is strictly observing Geneva :led Cross Con'~"~'ention as a signator;)

state. Second, a.l though not bound by the Convention relative to treatment

of POW1s, Japan will apply mutatis mutandis provisions of that Convention

to American PO?P s in its power. 11

Witness MATSUMOTO, who handled the discussion between the For eign Offic

and the War Mini stry, explained to the Tribunal .wha-t; they meant by the ex­

pression "mutati~ mutandll". It v::-.s the intention .of Japan with respect to

treatment of POW 1 s that the stipulations of the Geneva co.nvention shall be

applied . so far as circumstances permitted . He wus referring to two kinds of

difficultie s:

1. The Japnnese domestic l aw, pence .law, army and navy penal code and

court-martial law, 'mich were in -some respects not compatible with

the Geneva Convention.

2. The diffioulties Japan ~rould face due to ~P vastness of the area

of East Asia .

- 1,139 -

The prosecution rightly contends tha t the H~gue Convention was

r atified by Japan. That convention, however, contains a provision in its

Article 2 that "the Provisions contained in the Regulations • • • do not

apply ex~ept between contracting powers, and j:.hen only if all the be lliger-

ents are parties to the Convention".

Neither Italy r..or Bulgaria had ratified the 1907 Conventions .

In my opinion, therefcre, neither the provisions of the Hague Con-

vention of 1907 nor those cf the Geneva Convention of 1929 shall apply to

this ~ase .

This, of course, cJ oes not mr·an tha t the fate of the prisoners of wc;r

was absolutely at the mercy of the J npcnese. All thnt I find here is that

those nonventions, as conventions, would not apply to this ~ase.

Befor e proceed:..ng further w:i.th the matter I would lik e to notice two

very pertinent fnntors whic~h had tremendous eff:'e,..ts on the events that

happened. One is the fundamental difference between the Japanese and the

V·lestern view of sur1·ender, - the "shnme" or the "honour" of surrender.

And the other is the overwhelmingly large number of surrenders ;·;hich Japan

had to face during i:,he Pacific War. The latter was a] most as unexpected as

the atom bomb, If the atom bomb has come "to force a more fundamental

searching of the l egitimate means for the pursuit of military objectives," ('1

these overv1helming by l arge number of surrenders have equally come to force ;.

a more fundamental searching of the extent of the victors 1 obligations to

give quarters t o thr: surrendering army. An army of 100, 000 surrendering

to an army of 34,000 create s a very gr ave problem for the small victor army.

' •. 1,140 -

In these days of totfll war vlith such technique of war involving possibili-

ties of sudden surrenders like this, many of the provisions of the existin£

conventions may require fund811le ntal modifications . l'/e should not fore;et

that whenever any of the laws of war have been found to be a definite and

permanent obstacle to the achievement of the ob.ie~tives of war, the sane-

tion of common interest and the reason for tbe continuance of the rule has

disappeared and the rule has not been observed.

Pending a more perfect world organi?:ation anrl union shown to be

capable of preventing V19.rs , i f the laws of v;ar ~a~not rule out any means

ef~e~tive to secure the ends of war these cannot equally rule in any thing

whi~h ma~r prove highly obstructive t o the achievement of its objectives.

If the countries having the atom bomb can expect to .keep the t echnique

of the a tom bomb secure, it v.oul d hardly be r easonable to exper!t them to

f'orego this advantage any mo!'e than it would be t o expect them to make

pubJ.ic any othe1• plan of milj tary def ense and the military advantage de-

rived ~rom supe~ior r esearch or administr ative orP-anization . The frightful

effil'!ien~y of t~e bomb, in spite of the consequent indiscriminate destructi(

of niv:i.lian life and property, offers an advantage , which, we are t old, wou·

not be f or egone simply on the se ntimental humanitarian objections . The

incidental civilian loss and suffG:ring, we are t old, i s also of military ad·

vantage in that. it v:eakens the enemy's morale. If t his is so , we ar e 3lso

to think over the sitt:ation that is creat ed by surrenner in l1i a.L- o(

number s , snecially when the policy of one party i sAfl ghting trl. ~.

the other is avoidance of facing hopeless odds . f-.

- 1,141 -

overwhelming

to desth and o:

I have noticed above the Japanese poli~y of surrender . It is not a

policy of the 0onspiratorial g roup; it is a policy t'loeval ···;ith Japanese

national life . It went a gr ea t way 1n moulding the mental make- up of the

Japanese soldiers and was largely responsible ~or many of the happenings

with ,.,hi~h we a r e now con~erned . Of course t his Hould not, in any \vo.y ,

justify the ir misdeeds , a nd , I am sure, this has not bnen alloi'Ted to

justify their r.or:duct by tha vi~tor nations in their t r ial for such mis ­

deeds. We a r e , however , not considering here the criminality or otherwise

o f those deeds. ~~e are only ~ons iderincs how far, in the absence of any

evidence of "order, authoriza tion or permission" emanating ~rom any of the

ar::cused b"'f or e us, the mC'r e general !Jreval enc e of' such misdeeds i n every

theatre of war, ·~1ould l ead us t o any infr,r cnce of. su(')h or c'!er, authorization

or permission.

It is no wonder tha.t t o the ,Tapancse r•ith the above mental make - up,

the wes t erners , 11ho becrune pn.soner s of war, ···E'ro dis~rar::ed by the mere

fal"lt o:f surrcmdE:r. "In JG!Jancse eyes they have suffor r d ienominy and it

v:as bitkr to th ::lm that the Americans did not knov1 it . Many of the orders

which Americ['.n prison<:.rs had to obey, t oo , were those whi~h had al so been

r equired of their Japannse ke~p0rs by their own JapanesG of'fic er s; the

f orced marches and the elose- packed trans -Rhipme nts wor e 00mmon places to

t horn. "

"Open challenging of autho't'ity v;o.s terribly punished even if' it ,.·er< murc

1 ansvvoring back ' . .Japanese rul es a r e very stri~t nP,ainst a man ' s ans,vering

back even in c-ivilian l.ife on:l their own 8.rmy pr:10ti~es pcnnli7.cd it he~vily

- 1,142 ~

-

It is no exonerat.ion of the atrocities and want on cruelties that did occur

in the prison camp to distinguish between these and those acts which ·were

the consequences of cultural habituations."

11 • • The shame of surrender was burned deeply into the consciousness

of the Japanese. They accepted a;;: a matter of course a behaviour which

Tias alien to our conventions of warfare. And ours was just as alien to

them. They spok~ \dth shocked disparagement of American prisoners of war

who asked to hav~ their names reported to their government so that their

families would kno·.v that they were alive. The rank and file, at least,

were quite unprepared for the surrender of American troops at Bataan for

they had assumed that they would f1.ght it out the Japanese way. And they

could not accept. the fact that .Americans have no shame in being prisoners

of war."

One of the Japanese attitudes whi ch had to do more specially with the

Japanese army concerned 11the expendability" of their fighting forces.

"Americans thrill to all resoue, all aid to those pressed to the wall.

A valiant deed :ls all the more a hero ' s act if it saves the damaged.

Japanese valor repudiates such salvaging. Even the safety devices in~

stalled in our B-29 1 s and fighter planes raised their outcry of cowardice.

There was virtue only in acceptine life and death risks; precautions were

unworthy. This attitude found expression also in the case of the wounded

and of malarial patients. Such soldiers were damaged goods and the

medi cal services provided were utterly inadequate even for reasonable

effectiveness of the fighting force. As time went on, supply difficulties

of all kinds aggravate1d

- 1,14.3 -

this l ack of medical cJ.re, cut that was not the vJhole story. Japanese

sc0rn of materialism played a part in it; her soldiers were taught that

death itself was E. victory of the spirit and our kind of care of the sick

was nn intorferenoe with her oism, - like safety devices in bombing planes.

Nor ar e the Jap11nose use:lto such reliance on physicians and surgeons in

civilian life as 1\m,ricans are 9 Preo~cupation with mercy toward the

damaged rather than vii th other welfare measures is especially high in the

United States and is often commented on even by visitors from some European

c0untries in pean9time. It is ~ertninly ~ien to the Japanese. At all

events, during the war t he Jcpanese army had no trained r escue teams to

remove the wounded under fire and to give first aid; it had no medical

system of front line , behind-toe-lines and distant recuperative hospitals.

Its attention to medicu supplies was lamentable ••• 11

"If this attitude of the Japanese toward damaged goods was fundamental

in their treatmer..t of their C'lWn countrymen, it was equally important in

their treatment cf American prisoners of war . Acc~ding t o our standards

the J apanese were gun ty of atrocities to their ovm men as well e..s to their

prisoners. The fermer chief medical officer of the Philippines, Col onel

Harold W. Glattly, said after his three years internment as a prisoner of \

war on Formosa that the American prisoners got bett er medical trAatment

than the J a pane sEJ soldiers. • • "

This is •.vha'j an anthropologist Y:ri t es of the Japanese view of soldier' s

life . This would not justif'y thej r inhuman behavi our t owards prisoners of

war and certainl~r was ne t a~c EJpted by the Allied Powers in exoner a tion of

- 1,144 -

their ~trocious conduct, But this would expl ain their r.onduot vd thout

as~ribing the same to gov~rnment pol1cy . Vfuatever be the mental make-up

of the J apanese soldier s and however much their conduct t ow:o.rds the pr ison

ers of vmr might. ha ve beeo ,justifiable in their own eyes, thr:y hud t o

answer -ror o.n their brutalities and, o.s I have c.lrea.dy pointed out, most

of them have dor:.e so v1ith their own lives. We a r e now concern"ld ·Ni th a

ve rv differ ent set of persons. ~efore v1e can make them r e spon:=;ible for

these a!'lts, ·.~re rr.ust see their connection ilith such n~ts ':/ell-established by

the evidenne befor e us.

For this pt.rpose we mu s t keep in view the following questions:

1. How f ar· the evidence e stablishes the conne~"' tien of cny of the

aMused with any of the so acts.

~. (a) V~.ether the ac t in question can be said t o be the act of

state;

or (b) ~Thether it can be ascribed to any of th~ accused in his

ir.dividuol c apacity.

3. If an act of sta t e , ,._,h ~thcr tho a ncused can b t; held criminally

liable for it.

The Charter constituting the pr e sent Tribunal in its Ar ticJ e ~ enacts :

" Neither the official position, nt c.ny tilTle , of an an~"'Used, no-r the

f u()t that an ac~used o.cted pursuant to order of hi s gove rnment or of a

:=:upc:>rior shall, of itself, be s uf ficient to frer such a r.cu<>ed from r espon­

sibility for an;v r.rime with ··1hich he is charged , h.ut sur-h ~'ir()umstr.nces ma.y

be c onsider ed in mitigation of punishment if t he Tr ibunal dct9rmi nes thnt

- 1,145 -

,iustice so requires ."

All that tho Charter enacts is that the official position of the

accused shull not of itself be sufficient to frRe such ar.cused from r espop-

sibility of any ~rime.

The Charter does no·t say und certainly it is not the lm•J that the

accused must be held criminally responsible only hecause of his offi~ial

position. Criminal responsibility must first of all be brought home to

him, and then, if the accused plends his official position ~ in defense ,

the Charter purpcrts to exclude such n plea .

The Nuremberg Charter in its Articles 7 and ~made corresponding prop

visions. These Articles stood thus: ,.

((Article 7. The official position of defendants, whether as heads of

state or r es-ponsible off'icials in government depat'tments, shall not be cop!'"

sidered as freeing them from re~ponsibility or mitigat ing punishment .

((Artir.le 8. The faet that the defendant acted pursuant t o order of his

government or of a superior shall not free him from r esponsibility, but may

be considered in mitigation of punishment if the Tribunal determines that

,justice so requi·c-es. ))

Though not so relevant f or our present purposes we may notice the

f ollowing two pr~visions having bearing on the plea of superior order .

British r.·Janual of Mili tnry Law, Article 443 (Land Warfare) lays down:

"It is important, however, to note that the members of the armed

forces who commit such violations of the recognized rules of warfare as

:Lre order ed by their Government or by their commanders at'c not war~ criminalt

- 1,146 -

and ~annot therefore be punished by the enemy. 11

The .American rule was also the some up to 1944. Its rules of l and

vmrfare , Article J66 . stood thus:

"Individuals of the armed forces will not be punished for these

offense s in case -chey ar e committed under orders or sanction of' their

government or comr.1anders. The commanders orderin~ the eommission of such

acts, or under whose authority they are comrnitt8d by their troops, may be

punished by the bnlliger Emt int o whvse hrmds they may fall. 11

I have st a t ed above how the prosecution seeks t o fix the criminal

r e sponsibility for the chDr ges under consideration on the accmsed before

us.

It would be c onveni ent for the present purpcse t o divide the nc~used

into the ''ollowinf f our r.:lasses: -

1. Those of the accused who, as members of the government, had dutie s

ass igned t o them in respect of the prisoners of war;

2. Those of the nr.~used who wer e in command of nrmies, the personnel

of which actually perpetrated the crimes ;

3. The rest of the members of the government;

4. Those of the accused who held no position either in the Govorr>..ment

or in the Army.

It may be noticed here that, a~cording to the Pr osecution evidence,

the departments immediately r esoonsible f or the prisone r s of war were :

(1) The War Ministry, (?.) The Ministry of Foreign Affnir s and (3) The

Imperial General Headquarter s •

.• 1,147 -

-

In the War Ministry the principal responsible officers were:

(i) The War Minister,

(ii) the Vice Minister o:i' War,

(iii) the Chief of the Military Affairs Bureau,

(iv) the Chief of the Military Affairs Section, and

(v) the Chief of the War Information Bureau.

In the Ministry of Foreign Affairs the r e sponsible officers we r e:

(i) The Fcreign Minister a_~d

(ii) the Vice Minist er.

In the Imperic~ General Headquarters the responsibility lay on

(i) The War Minister,

(ii) the Chief of the Army General Staff,

(i ii) the Navy Minister and

(iv) the Chief of the Navy General Staff.

Accused KIMURA, KOISO, MUTO, OKA, SATO, SHIGEMITSU, SHIMADA, TOGO and

TOJO would be the persons having r esponsibility under this category.

KIMURA was Vi1~e-Minister of War from 10 April 1941 to February 1944.

MUTO was Chief of the Military Affairs Bureau from October 1939 to

April 1942.

OKA was Director of the Naval Affairs Bureau from 15 October 1940 to

18 July 1944.

SATO ~as Chief of the Military Affairs Se~tion from February 1941 to

April 1942 and Chief of the Military Affairs Bureau from April 1942 to

December 1944.

- 1,148 -

SHIGEMITSU was Minister of Foreign Affairs from April 1943 t o 6 April

1945.

SHIMADA was Navy Minister from October 1941 to July 1944 and was Chi ef

of the Navy General St aff from July 1941.. t o August 1941~. _ . " ' I f. . ' .:;; -:.-;~ • J I I . W, '?

TOGO was Fore ign Minister f r om October 1941 t o ·· · 194< .

TOJO or.<'upied the nosi tion of the Minister of War from July 191~0 to

July 1944.

KOI SO became Prime W.inister on 22 July 1944 and his cabinet functioned

till 6 April 1945 ..

Accused DOHIHA.RA, HASHIMOI'O~ HATA, ITAGAKI, h.IMURA, MATSUI, MUTO,

SATO and UMEZU come under the second category.

Those of the accused who come under the third category only: Accused

ARAKI, HIRANUJI.'IA, PI ROTA, HOSP.DJO, '!.. AYA, KIDO, MINAMI , OSHIMA , SHIRATORI

SUZUKI thus come under this catescry.

As t o the responsibilities involved in the off i<'e held by the act1used

of the first Clategory nalTled above , the prosecution evidence is t o be found

in the deposition of its witness, TANAKA Ryukichi.

The witness was Chief of the Military Service Bureau in the War MinistrJ

and was familia r with the or ganizati on and responsibilities of the various

bureaus of the War Mini stry as they existed between 1940 and 1945. The

t esti mony of the wi tness mey be summarized as follows : -

1. The moHt important bureau in the War Of fice i s t he Military Affair s

Bureau .. The r easons for so s t ating is that the Militar y Affair s

Bureau is in charge of t he Pxmy ' s budget, the organization, equip-

- 1,149 -

ment and installetion of the military forces, the making of

domestic and external plans, the conducting of propaganda, the

conducting of investigation, all of which constitute important

functions . (R.P . 14285-86)

2 . Matter s concerning international r egulations affecting the army

were handled in the ~ilitery Affairs S~ction of the Military

Affairs Bureau. (R.P. 14286)

3. The resronsibility regarding the location and construction of

prisoners o.f war campsis with the !-~inister of War; but as to the

location and constrnotion of such cr.rnps, the business was handleG

by the Nili tary Section of the tt;ili tary Affairs Bureau . (R.P.

14286)

4. (a) In the matter of protests regarding the treatment of prison­

or~ of war, documents and other papers were sent by the

:1ir.istry of Foreign Affairs to the War Office, the Home

Offine and the Navy Ministry.

(b) Such diplomatic documents were first sent to the Adjutant 's

Office in the War Ministry and from there to the Military

Affairs Section. Those r elating to prisoners o~ war were

sent by the same section to the Pri soners of War Information

Bureau. (R. P. 14287)

(c) Repl i es to be made to the authorities outside of the i'lar

Office were prepared in the Military Affairs Se"tion of the

Military Affairs Bureau. (R.P. 14287)

- 1,150 -

(d) Th9 proposed replies would next go t o tho Foreign Office by

way of Adjutant 1 s Office .. 1Ne.r Offir.e. These went to the

Foreign Office after being given the approval of the Minister

an1 the Vice-Minister.

5. (a) Conferences of the Bureau Chiefs of the War Ministry were

held tvdoe a week.

(b) (i) Immediately after the fighting at Batann by the end of

April 1942 a meeting was held at which the question of

treatment of prisoners of war arose.

(ii) At this conference the question as to how to treat the

man~,.,..J3a;r•i•s,.£'_m;rs of war captured in · the various combat

zones in the southern areas ·vas determined.

(iii) Those present at this oonferen~e were TOJO, War Minis-

tor; KIMlJRA, Vice-Minister; TOMINAGA, Chief of the

Personnel Bureau; SATO, Chief of the Military Affairs

Bureau; witness himself and KAN, Chief of the Ordnance

Bureau; and YOSHIZUMI, Chief of the Procurement and

Mobilization Bureau; KURI~~SHI, Chief of the Security

Bureau; MIKI, Chief of the Surgeon General's Bureau;

OYAMA, Chief of the Legal Affairs Bu~eeu; NAKAJIMA,

Chief of the NAKAMURA, Commander of the Gendarmerie;

HO!I."'DA, Chief of the Armored Forct'ls Bureau; MATSUMURA,

Chief of the Army Press Section; other than these, the

private secretar1.~ of th"' w....- M1ni.ct;e:r ancl t;m; .. Vice

.. 1,151 ...

War Minister. That i s all.

(h·) At this r.onfe r ence at t he request of EUMURA, Chief of

the ~risoner of Wcr Informction Bureau, TOJO, War

Minister, gave his decision.

(v) In the light of the prevailing situation in Japan at

that time , which was to enhance the labor e~ficiency

of the country, and in the light of the slogan then

current, 'No work, no food" , ~irst POint that was

decided at this meeting was to make all prisoners of

war engage in f orced labor.

With r egard t o this decision, UYEMUIA, Chief of the

Military ll..ffairs - Prisoner of War In.forme.tion Bureau,

said th~t engaging prisoners of war of the r ank of

warrant officers and above in ~orced labour would be

tn violation of the Geneva Convention. But in spite c

the view thus expressed by UYEMUIA, War Minister TOJO

gave the decision of utilizing these offi~ers for labc

purposes in the lieht of the ~aGt that Japan had not

ratified the Geneva Convention, although it was the

government's position to r espect the spirit of that Cc

vention.

It wa.s decided t hat pri soner of war camps be esta.bl

ed not only in the southern areas but also in Japan

proper, in Formosa, Kor ea, China , and Manchuria , and t

- 1,152 -

send prisoners of war to tho2 e ar eas as a means of en­

hancing the trust and c onfi .Ence of the peopl es of Asia

i n Japan. (R. P. 14290-01)

6. ~lmE~rial-~nera1 Headgunrters wa~ established by an ordnance

(::!:xh. 8:>). It was divided into two parts, the Army and the Navy,

The Army, by the Army General starr and the Navy Department con­

stituted by Naval Genera). Staff. I.1 addition t o this, the War

Minister and the Navy Mir-ister part·lcipnted ·in the Imperial

Headquarters ns regular members. Then the Vice-Minister of War,

the Chief of the Military Affairs Bllreau, and other bureau chief s

when ne~essary, a ttended as members of the staff of the War

fAini s t er. The most important positions in the Imperial General

Headqu[.rters were occupied by the Ch·lef of the Army Gener al Staff

and the Chief of the Navy General Stttff. Other importunt members

in the:.r order, were the Vice-Chief ol the Staff, the \"far Minist e!

and the Chief of the First Division G* ·neral Staff. By Chief of

the Ti'i:rst Division the witness meant t:.he Oper ati ons Chi.ef. (R.P .

14923)

7. (a ) Jn Japan the handling of prisone r., is quite different +'rom

other countries , and the Prisoner of War I nformation Bureau

a:nd administration of prisoner of ·riar matters were under the

S'lP~" rvision of the War Minist e r hirtself. And , therefor e ,

t he actual handling of matters rel~ting to the pr isoners of

war was the r esponsibility of the lia r Minister himself; the

- 1,153 -

Foreign Off'ice 'Nas merely a post o-~'fice which handled the

communications . (R. P. 14365-66)

(b) In the \vitness' recollection, the business of control of thr

prisoners of war included such functions as where to lo~ate

POW camps, how to handle prisoners of war, how to promote

the health of prisoners of war, what to do with sick prison­

ers, and other general treatment of prisoners of war; how

tc d.istdbute Red Cross messages end parcels, and the

qt:.estion r el a ting to the exchange of POW letters as through

tte offices of a neutrol country.

(c) The matters of policy rAgarding prisoners of war is carried

out in Japan by -the War Ministry, specifically by the Mili­

t ary Affairs Bureau. Outside of Japan it is handled by the

Chief of the General Sta.ff after consultation with the

M:.nister of War. In the Army General Staff , it was handled

bv the Second Division .

(d) As to the requisitioning of food for prisoners of war, the

matt~r was handled by the various commanders who supervised

the various POii camps. In other wor ds , it was carried out

b;r various comi:landers in the field in accordance with the

o::-ders and inst ructions of the War Mini stei'.

(e) (:i) As to the needs of the commanders in the field dependir

upon the prisoners taken, the matters were carried out

by the commandants of the various prisoner of war camp:

- 1,154 -

in t.~e field who ~ommuni~::~ t~d directly wi th the Chief

of the Prisoner of War Inf ormation Bureau where the

mc.tters per-taining to PCJ/! s we r e disposed of. (R .P.

14369)

(ii) As the matters pertaining t o prisoners of war wao not

connected in ;:my way with operations, but being a

policy matter, the se matters ~auld be handled directJy

with the War Ministry through the Prisoners of War

Informoticn Bureau and this would not be in violation

of ~Y regw.ations. (R.P. 14369)

(ll:.) This diref't r eporting from the field to the Ministry of

War was r.arrie d on for the sake of convenience and

expedience with respect to matters which hod to be

settled quickly. According t o the rule, communi~ations

from the field to the central authorities were to be

channeled through the General Staff ; any direct r. ommun1

cation would be an infringement of t hose r egulations if

the rule were to be aoplied strictly; but prisoner of

war questions, being a our ely policy matter, there was

a tacit understanding that dire~t communi~otion could

be made and there was no protes t with respect the reto

from the hrmy General Staff.

In this connection we have also the f ollowing evidence :

1. Exhibit 68: Japanese Constitution.

- 1,155 -

2. Exhibi·~ 73: Imperial Ordinance r el a ting t o genern.l rules

concerning the organization of the Ministries.

3. Exhibit 74: Organization of the Wur Ministry.

4. Exhibi·::. 75: Or ganizati on of the f,Tavy Ministry.

5. ExhibL~ 3350: The J•egula tions of the Kempei.

6. Exhibit 78: Regulations of the !1rmy Gener a l Staff.

7. Exhibi·~ 79: Regulations of the Navy General Staff.

8 . Exhibi·~ 2983: Impe1·iul Ordinance concerning the or ;?,:mi za tion of

the Fleet.

9. Exhibi·~ 3462 : Regul ations governing the duties of the officers

of the War-time Superior Headquarter s.

10 . Exhj.bit 1965: Regulat ions for the treatment of POW, 31 Murch

1942.

Imperic.l Ordinance 23 De,.ember 1941 on POW

Cu.mp ..

11. Test imony of TOJO .

12 . Test imony of SPI MADA.

I need not examine this evidence in de t ail. For my present purpose

the eviden ce of TANAKA Ryukichi gives a f airly accurate account of t he

working of t he Bt at e m!'.chincry.

I may now take up the d:i ffe r ent i t erns of ~rime s against the Prisonen

of War. The several ca t egories of crimes clleged t o have been committed

are given bel ow;,

1. Inhmna 11 treatment of' the Pr isoner s of War in controvent ion of

- 1,156 -

Article '~ of tho Haguo Convention of 1907 n.nd Article 2 of the

Geneva Convention, 1929.

(a) Treatment of Prisoners of War by the Kempei Tai.

(b) The prisoners were starved and subjected to corporal punish­

men1;, a nd their slck were neglected .

2. Insults and expositions to public curiosity in contravention of

Arti cle :~ of the Geneva POW Convention, 1929.

3. (a) The making of oaths or agr eements not to escape.

(b) Punishments of Prisoners of War for escaping , in excess of

those prov:Lded by the Hngu~) Convention 1907 and the Geneva

Convention 1929.

4. Transportation of Prisoners of War:

(a) by sea,

(b) Bet !ian Death f\1arch.

5. (a) Employment of the Prisoners of War upon tasks he.ving connecti ·

with the operations of the war ,

(b) Compulsory employment of Officer Prisoners in contravention

of Article 6 of ~ he Hague Regulations of 1907 and Article 29

of the Geneva Convention 1929.

(o) Employment of the Prisoners of War in Burma-Thailand Railway.

A, Prisoners of We..r \7rongful1y convicted of espionage char ges .

7. Execution of Allied airmen.

( :::t) Cr eation of ~ EOst f.gcto law.

(b) Execution on trial.

- 1,157 -

( ~) Exe(:ution without trial.

It cnrmot be denied that the treatment meted out to the Prisoners at

the varioun theatres of Har was inhumnn . The actual perpetrators of these

atrocities have been dealt with elsewhere, and there is no rec.son to

suppose that in their case anything but stern ~ustice has been adequately

meted out. These actuc.l perpetrators are not before us. The case agai.nst

the accused before us is:

or

1. thc.t they ordered, au,.~hori .-:d "'..nd permitted the ~ommission of

these a t :roci t:i .,..~;

2 . th;> ~ t.ney, being by virtue of their respe~tive offi11es r esponsible

f or secUJ~ing the ob servnnce of the l aws of war, deliberately nnd

r e cklcss:.y disregarded their legal duty t o take adequate steps t o

sc0ure the observ::mce and prevent the breaches of such laws and

ther eby violated the l c.ws of r:~r.

If the first of the above allegations be f ound established, the r e is

no doubt that the atrocities committed would be their ovrn acts and they

would be criminal:.y r esponsible for those of them thn.t a r e crimi nal ar.ts

in international l aw .

So far as the sf.cond item is concerned, I h~ve a lready g iven my r eason

why, as the Chnrter constituting this Tribunal stands, any deliberate and

reckless negl ect of' duty alone would not suffi~e t o fix any criminal

responsibility on the prrsent ar.<!used . ro inacti on as such, ho·7ever de­

liberate and r eckl ess, has been listed in the Charter as acts t o be tried

by the Tribunal. The inaction is only t o supply an evidentiary fa<!t, the

- 1,158 -

ultimate probandurr being 'the order, authorization or permission' emanatinr

from these accused, so cs to make the net in question , their ovm ant.

In order to fix the criminal responsibility for the nharges under con­

sideration on the accused before us, the prosecution stresses the follow-

. ing points : -

1. Prisoners of ;,var are :ln the Power of Government.

(a) No government or member of it can therefore evade responsi­

bility by trJQng to shift it on to a partinular department.

(b) The responsibility remains uith every individual member of

the: GoveiTment.

2 . (a) EVE!ry one of the accused must have been awar e of the atroci­

ties from their very notoriety.

(b) A gene ral similarity in the nhara<"'ter of the outrages es­

tablishes a universal plan or pattern and indicates that thh

was a recognized policy of terrorism .

A!'tinle 4 of the Hague Convention says that 11prisoners of war are in

the ~ower of the hostile ~overnment , but not of the individuals or corps

who napture them . They mus t be humanely treated" ••••

Article 2 of t he GEmeva Convention also says the same thing though

expressed in a :3lightly different l anguage . Ancordi ng to this article,

"prisoners of war a re :"n the power of the hostil e power, but not of the

individuals or ~orps who have captured them. They mus t at all times be

humanely trea.tPd and prote~ted, particularly aeainst acts of violenoe, in­

sults and public ~uriosity. Measures of r eprisal against them are pro-

- 1,159 -

hibited".

Ac~ording tc the Prose~ution, this "hostile power" or "hostile govern­

ment" means and refers to every member of the government, and no member

cf it ~an evade I~sponsibility by trying to shift it on to a particular

department . The main r esponsibility, according to the Prosecution, remair.

with every individual member of the government. I urn Flfraid I cannot accr·

this interpretation of these provisions .

In my opinion, the members of a government are entitled to rely on the

proper functioning of every organ of it. A government under its constitu­

tion operates by distributing different functions amongst its different

members. The r esponsibility f'or the proper Clischarge of any of those

functions would lie on the particulnr member entrusted with its discharge.

Other members ar~l entitJ.ed t o rely on the proper functioning of the

particular organ taking up these distributed r esponsibilities . Even in

his own sphe re of r esponsibility, a member is entitled to r ely on the pro­

per working of the machinery provided by the constitution for the disohar g(

of hi s fun0tions .

According t o the Prosecution every member of a Government owes a duty

to bring such matters before the C.:1binet and to resign, if he fails therebJ

to get Batisfact:_on.

In my opinion, at leas t f'or our present purposes, when we are called

upon to fix crim:tnal responsibility on the p:r ound of any i naction on the

part of a portioular member, I would not insist upon the observan~e of the

standard of t1onduct l aid dov.n by the Prosecution . Such a standard may be

- 1,160 -

071 t:.

an ideal f or the golden age of an intern<Itiono.l r.ommuni t y . i.t pr esent no ;...

governMent in the worla functions in th8t way, and I would not ~~pPct any

extraordinary st~1dard of conduct of the present accus~d . We must not

nJs0 f orget that W<:J or o now considering the war--time behaviour of a

Cabinet member. runy neacetime code of behaviour is likely t o be more or

l ess Q~suitable to meet the exi~encies of the situa tion as develop~d in

the Murse of any current war . ~very such war would give rise t o new Jlot-

social, economic nnd bellige r ent conditions. We must fl.CHv-. also ignore the

part vJhir.h propaganda is mude t o play by the Powers of t he present-da.y

international society, specially in such w~r-time .

The three main source s from which the Prosecution alleged that the

Japanese Government obt a ined 1<nowledge cf the commissi on of vw.r ~rimes by

its nationals during the Padfic War c.r e c.s follovJs :

1 . ProtestB lodged bv Prote<""ting Po•vers 0n be half of bellip;er ents;

'2 . Tr nnscrlptions cf r ecordings of' broadcasts made f'rom America. and

Great B1•i t ain during the Pacific lflar;

3 . Off'i~i:i:. Japwc se documents which constituted evidence of or c.

dire~tion t o 0omll:it \Jar crimes .

Most of the prot e s-':.s hr~d r ef'e r ence to prisoners of' war held by the

army. C0pies of these vrith translations attnched wer e sent t o ull ser.tion~

in the :·~ar Hinistr)r concerned with the subject matter, and a.t times , de-

pending on the n ::1ture of t he pr ot est, copios v:er e also sent to othe r

ministries such .::t.s Ministry o:f Home Affairs, Justice , etc.

At the ''hr Ministry, anv protests r eceived v1er c di s~ussed nt the

- 1,161 -

confer ences between the Mini st er, Vice- Mini st er .:•.nr1 the bureau chiefs .

After this they wer e fOl"Wnrded by the Prisoner of War Information Bureau

to the nrny comm8.nder of the o.r ea in v1hich the gr ounds of the prote st had

ari sen nnd o.lso to the chief of the orisoner of wa r r.runps in that area .

Upon i nformation being received from the last mentioned sources, a reply

w2s preparP.d in the military affairs sectir n of the Military Affairs Burem .

.:md f orwarded to the Foreign Office .

From various do,.,uments in evidence , it would appear to have been the

practice to give protests ond other documents oria,inating with the Pro­

t eding Powers a fairly extensive circul a tion in the !~/ar :anistry; in

addition, the Fo·reign Ministry would frequently send Ctuplinates of pro­

t ests to the ? risone r of War Information Bureau as VJell as to the War

Ministry. (rt.P, 2'7158, Exh 4'73; Exh. 3529, 3)67A)

Th e Prosecution admitted tha t, considered purely a s a mntter of

machine ry, no fault could be s urrgest ed v.rith r egard to this system. It,

however, contended that it vms not enough f or the .Tap.?.nese Government t o

pay "lip service" to its obligations under interna tional l aw. We we re in­

vit ed t o r e call that the Japanese Goverrunent \'las clready Ylell-h.formed of

the barbDrous manner in which the J [>.panese force s customarily be haved .

The Pr osecution contended that the very na ture of t he orotests, nouplc

with the supporting evidence thc.t accompa nied them, nnd the r eplies rnnde

by field c ommander s to the Prisoner of War Inforrnntion Bureau, insofa r as

such information is concerned, made it perfe,.t1y clonr to tho War Hinistry

and the Foreign Office tha t war crimes VlGr e being nnd ho.d been committed

- 1,162 ..

and yet no effocti ve steps ·.vet e taken to stop them . It v;c.s , ther efore,

submitt~d thnt they Tiere al1owed t o aontinue as a matter of government

poli0y or ns matte r s t o which the Japnnese Government was indifferent.

The officiel Japanese docum·3nts whi0h, according t o the Pr osecution,

constitute 0vidence of or a direction t o commit war crimes, r cl nt e to

di.ff,:; r ent matter·s having nothing t o do with the inhuman tre:atment of

prisoners of v:r:.r under our consideration. Some of these r el At e t o e;mploy­

ment of the prisoners or vnr on prohibited tasks and others r elate to tvha t

the Prose~ution characterizes c s insults to the prisoners. I have listed

thesf; offences soparatoly and shall consider this part of tho evidence in

thct connection,, The thi.rd set relates to censorship instructions issued

during war, Su(!h instructions prohibited "any r eports which gi vc an

impression of cruel trectment, s uch as prisoner s being punished or being

made to l nbor '.i:lthout clothing11 • I donot think that such measures

necessarily l ead to .the inference th~.t the authorities had kno VIledgc of su

treatments of tho prisoners , Ce rtainly the authorities concerned had knov.

l edge in thr; sc>nse that ther e were those protest s and broadcasts from the

enemy sour~es 1:.:1d this vms sufficient f or the r..doption of the ur eccuti onur

measures . Such ~ensorship measures Y•er o common to enemy belli~orent nntio

F~nr of evil propag.:mda wo.s not unusual with the belliger ent p0\7er s,

As r egards transcriptions of r ecordings of broad~nsts made from Aneri

and Great Britc.in , I must ng~in r efer t o the past history of propaganda

al r eadY noticed by me . Afte!' tho First '"orld l."'nr it ·uns \7idely Ynovm how

sort of vile competition was cn.rried on in exerting the imaginction as a

- 1,16.3 -

means of infuriat ing the. enemy , h~"o.ting the blood of the s t ny- ct - homes on

one 1 s o~m side end filling the neutrals ,_,.i t h l oathing and horror. People

wer e m·~de t o swo.:.low even some of the most bizarre f a iry t al es . I believe

the nc~used were entitled not to t ake these brond~asts a.nd prot ests on

their +-tv·e value , They were no doubt bound to enquir e, and they did so

enquire. They vmr e certainly entitl ed t o r ely on the reports coming fr om

their own responsible offic ers. I do not think it wouJd be merely paying

'lip service' to its obl i gation if any government accepts such r eports frorr - its responsible officer s , spe<:ia.lly during 'N:.lr -time. Every government did

so. o; I do not think it is exp<;cted of o. war ministe r · : or,..<. n. f or e i gn

minister of any goverrunent tha t he shoul d personally go t o the alleged plnc-

of Of:currence and. ver ify whether the protests were well f ounded or not. We

must no t f.'or get t.he va stness of the theaters of war. f1 war minister or a

for e i gn minis ter did not stand in r el ation to the se orisoner camps in

dif~"erent parts :>f the Pacific theat er of war in the same position as does

even the head of a police department in r el ation to the differ ent oolice

stations in a city.

I do not see anything of special r eliability in the nature o~ the nr o·

t ests or in the so-cal l ed sup"Oorting evidence thnt D.<"'compa.nied t hem. The

prot ests carne through neutral powers; but the se neutral powers wer e onl y

transmitting wha t they got from the pr ot esting belliger ents .

No evidence of ony customary beh~viour of t he Jnpane se f orces is bef or

us. I hove o.lrec.dy exn:nined bow t he s t ories of o.trocities in China stood

- 1,164 -

c.t the time nnd stand nowo

The Prosecution l2id much stress on the similarity of patterns of

crimes committed in this r espect in every camp . I have alr eady examined

this alleged similarity of pattern in another connection . In ~y opinion,

no such similarity of pattern has been established as would entitle us to

hold that c.ll thos~ inhum~n trentmsnts were the r esult of the government

pclicy or direct:.ve.

We have in evidence before us that the express directions and in­

stru~tions emana,~ing from the War Ministry wer e ngainst such treatment.

However inndequA.te in comparison \'lith the stories of atrocities , ther0 are

in evinence ccses of . punishments of the guards and offi~ers concerned for

mnl treatment of the prisoners . There a r e admitt edly cases of cmnps where

the trentment was unobjectionable. Ther e are neutral inspection r P.ports

of at l east some of the camps which support the ~ases of good treatment of

the prisoners thc3r e at least during a considerable period of the wnr. Eve

one of these ma tters would sufficiently counter the hypothesis of any

~entral policy, :iiroctivo, or permission countenancing the ntmcities now

disclosed in cvi:ienceo

I have Dlrec.dy indicnted whn t sort of inaction is required to be

established in this case and .t.'or whet purpose. In my opinion, no such in­

action in this r espect on the part of the accused has been established in

this ~ase as would entitle us to infer that these a0ts of inhuman treatment

meted out to the prisoners of war were ordered , authorized or permitted by

any of the lwcused . The war her e might have been eggressivc . There mi ght

- 1,165 -

have been ~~ny ~tronities . Yet, it must be said in fairness to the a~cused

that one thing thAt h~s not been estublished in this ~ase is that the

ac~used designed to conduct this ?lnr in any ruthless manner.

Insults (~nd expositions to public curiosity in contrnvention of

Lrticlo 2 of the Geneva ?OW Convention 1929 ar e supportPd by Exhibits 1969

1973 ".nd 1975 .

Exhibit 1969 is the report dated October 1942, from t he Governor of

Kanagawa, to the Ministe rs of Welfare and of Hor.le Affairs, v1hich was also

sent on t o the Commnnder of the East ern Area Arr.ly nnrl the War ~:1inistry.

It states: "Though the public has not been informed of POW labor, those

who have guessed about it from seeing them on their way to -::.nd from the

place of l abor and their ~amps seem to realize with ~Yratit.ude the glory of

the Imperial Throne, seeing bef or e their eyes British and Arnerican -:?OW 1 s

c t their labor. A considerable influence seems to have been exercised over

the people of th:ls prefecture, mnny of whom had bern ccnsiderf:\bly pro-

Angl o-Americ'ln . 11

Exhibit 1973 is ~ signal .. ,hich on /._ March 1942 the Chief of Staff of

the Kor ean Army 5ent to the accused KI~IDRA the then Vi~e-Minister of War,

in which he says, "As it would be very effe~"tive in stamping out tho re-

spect a nd admiration of the Kor ean peopl e for Britain and .. America, and clsc Td.-) '

i n establishing in them a str ong fni th in vj <'tory and c.s the Goverr .... · i. tj .;cnernl and the i~rmy nre both str ongly desirous of it, we wish you would

intern thousand British and thousand luner1can prisoners of wnr in Korea".

On ~3 M11rcl::. 1942, the ac~used IT:.GAKI, :1s Commander- in-Chief cf the

- 1,166 -

Korean Army , sent t c the ucrused TOJO n pl nn f or tbo inte rnment of prison-

e rs of war . I n this plan he sets out the purpose a s follows:

" I t is our purpose by interning Americon and British pri soner s of 'iW.r

in Korea t o r.mke tho Kor eo.ns r ealize positively the true might of our em-

pire as well as t o ~ontribute to psychological propaganda work f or s tamp-

ing 0ut any ideas of worship of Europe and /.merica which the gr eat e r part

of Korea. st ill r Gtains a t bot t om: 11 (Exh. 1973, p. 3).

The Pr osecut i on in its summation des~"ribed Exhibit 1975 thus: "On

13 October 194'2, the Chief of St a ff of the Kor ean Army sends to the nccuscJ

¥ IMU~\ a. r eport of the p~radc of 998 POW a l ong bys tander-thronged r oads

of F'nean, Seoul and Jinsen i n Ko ren . He s (ws : 1 AB .'1 whol e , it snems t hat

the ideo. wo.s verv suc~essful in driving all o.dmiro.tion for t he British c.nd

Amcrico.ns out of thoir (i. e . tho Xor <: c.ns 1 ) minds 11nd in driving into them

an under s t anding of the situ.-:.tion '. 11

Exhibit 1975, however, noes not speak of nny sunh Pnr.g.QQ of the

pri soners of '::o.r. The r eport f.! ive s "reactions c.mong the general public

follm~ring inter nment of British prisoner s of war",. and says "the nrriva.l

of 998 prisone r s ccptured in Mal aya ha d so greP.t nn of'f ect upon the peopl e

in gene r al, e spEcially upon the Koreans, tha t nbout 120, noo Koreans and

57,000 Japan~se bys t ander s lined the r ends of Fuson , Seoul ~nd J inson t o

see the prisonc: r s of vvn.r being tra nsported". Certo.inly thi s wus not

"parading the prisone r s f or exposing them t o publi~ ~uriosity" . The Pros-

ecution cert~inly cannot sugpest tha t in all other ~ountries prisoner s of

war a r o transported through roads prot ec t ing them from public . .::azc . I do

.. 1,167 -

-

no Cthink Article 2 of the Geneva. Convention pr( hibits such transportation.

These prisone r S('lldie rs l'le r e certc.in~y r.c~ustomed t o walk through public

s treet s and we r e equally acnustomoo t o publ ic paze . Even if the f' act of

t h&i r h~ving been !)ri::;oners of war de~raded them in the ey~· s of any public,

t hey 1PC:: r~7 not entitled t o any protection from thej.r ~aze . The r e i s no

e.ll egntion of !IllY mol esta t ion or insult offer ed t c them by the publi c.

I must fir s t of c.ll point out thnt J.rti 11lc 2 of' the Geneva Conv0ntion

1929 is not applinP..blo t o thi s case . I have nlre~dy expla ined why I s ay so

But n.part from thr.t question, I do not think th&t t he se r F:ally in­

dica t e rmything intended t o i nsult thc: se prisone r s of vw .. r. It i s not in

evidence thr-~.t t hose pri soner s of wc.r we r e actually treat ed i n any insulting

manner. No o.bnoJ•mnl treatment v:ns ac~orded t o thorn . They wer e not even

exhibited f or t he purpose of s xhibiting them t o the public. They we r e

taken to those p:La0.es s imply t o convince t he people the r 6 that e ven white

s ol di ers could be de f eated and c ould be t ikcn prisone rs. Their fa ith in

wh i t e suprema cy was c ons ider ed by t he Ja pane se ~uthorities concerned t o be

mer e 'llyth and t hG;r s imply thought that t he vr;ry fa ct that whi t c s oldier s

c>ould be t c.ke n pr isoner s r:ould demclish tha t myth. I do not see why this

should be looked upon o.s an insult or e xposition t o public ~"Urio sity.

The Pr oseoution complai ns thot the priscners of ~ar wer e co~pellcd t o

sign agr eements ~nd t ake oaths no t t o e scape , in cont r a vention of the

spi rit of Article 2 of the Hague Convention, 1907.

The J upc.neso during t he Pacific W::::.r made certain r e gulations o.nd l aws

under v1hi0h they a uthorized t he c ompul sory administrntinn to pri soner s of

- 1,168 -

oaths that they •vculd not escape , and providinr.: honvy penal ties for breachec

of such oaths.

Exhibit 1965 is the detailed r egulations for t he treatment of prisoners

of war. Article :: relates t o non-escape oath. Article 10, r el ating to

discipline law f or pri soners of war enacts : "Those persons who have t aken

oath not t o escapEt and ,,,ho violate this oath shall be sub,iect t o either

hard labor or imprisonment f or a minimum of one year."

Articles 5 and 1~ ref erred to above wer e introduced into Japanese law

in rt.arch and AprL. 1943, r espec:tively. Article 10 has a somewhat similar

counterpart in Ar·vic l e 5 of t hE1 law No . 3B of 1905 •

The l? rose~ut:Lon points out that according to Japanese official figures,

between 2 June 19/+2 and 3 ~1ar~h 1945 sixty-four prisoners ~"Jere convicted by

court-martial f or violation of non-escape oath and re~eived sentence ranginf

from one y:1ar 1 s i mprisonment t o death. (Exh. 1998)

The imposition of t hese i llegal penalties was known t o th~ Japanese

Government because monthly returns were required of all c ourt-martial punis~

ments a!ld of all disciplinary punishment s enf orced. ("xh. 1999) These

r eturns vmre sent t o the Prisoner of Wnr Information Bureau .

I do not consider that making of oaths or agr eements not to escape

would be criminal on the part of the member s of' the government ~hich author·

ized suoh things. I would again point out that the Geneva Convention of

1929 was never r atified by Japan, and neither the Geneva Convention nor the

Hague Convention as such was applicable t o this case .

Perhaps her E' is ac o~casion when the overwhelming number of' surr ender s

- 1,169 -

in this r-ase v1culd spec :Lally af f e ct the position . The steps taken by the

Japanese authoritie s in th1. s respect would be me r e nets of state. I would

not find a~y of the a ccused c r iminally liable f or them ,

The puni shment of escape1 prisoners, a.('cording t o these r eRulations

again would be mere o.ct of state. It i s not the t"ase of the Pr osecution

tha t anything \70S done in this re spect in brea('h of suc h r egulations or

without trial.

The Prosec~tion case r egardi ng transportation of prisone r s of war by

sea in substance is the.t in every such case there we r e violations of the

conventions . The Prosc:,cution lays emphasis on thA l'! ommon f eatures of such

viol a tions. ~icc: ording t o it, these common f eature s a r e overcrov1ding, unde:

feeding, i nadequate sanitation and ventilation , l ack of medical suppli es

and water, and :ill treatment of the prisoners.

Similarity of patt~rn of crimes in this r espe r-t i s claimed by the

Prosecution t o ·oe indioati ve of the f'ar.t tha t they wer e committed as a

matter of ~over:1ment policy or of government indl f'fpronce . The Prosecutic

points out a s s i gnificant tha t not one of the accused has , by himself or

by \ntness es, given any evidence of o.ny r eal attempt t o prevent the

commission of these crimes.

As re t;'ard~; the Cabinet ~~inister, the Prosecution urges that it was

clearly his dut.y upon l earning of the commission of these criP.Ies to bring

the f act t o thE notice of his colleague s in the Cabinet, and to r esi gn un­

l ess e-f'fe t"tive ste ps wer e t aken to prevent their commis si on , Ther e was n<'

evidence that any of them over r a ised the question of vror ~rimes in the

- 1,170 -

Cabinet. Their ~ailure t o do so makes t heir r ui lt gr eat er.

The Prosecu·:.i on further submitted that the r e was a clear duty upon

every official vho knew about the 11 om:niss i an of c.ny of these v1a.r crimes t o

use such power as he possessed t o put the ~atter ri~ht at once , a t l east

t o tho extent of bringing the outrages to an immediate s t op.

Her e again the s peci al difficulty creat ed by the overryhelmin~ number

cf surrenders must be t aken i nt o account. I do not ac~ept the evidence

on this point nt its f o.r1e val ue; but, even making every poss:Lble allowa.nn~

f or exaggeration and distortion, it cannot be denied that ther e was over­

crowding, underfeeding a.nd inadequacy in snnitation and ventilation. Thcr

ccrtninly we r e also instance s of ill-treatment of the prisoners during

transit; but I cannot ac~ept it o.s indira ti ve of o.ny government policy or

govcrnr.~ont indiffer ence .

The Prosec~tion contention that the Cabinet minists r s should have

re si~nod on thi s i ssue r eally contemplates an ideal s t a t e of a~fa.irs , but

I do not think riG cnn rN:asurc f or our pres0nt purposes the condu~t of the

prisoners ~·lith s uch an ideal s t andard.

Ther e is no ovidenre th&t the matter s now di sclosed bv evidonne wer e

known t o the Cabine t minist er a t the time of their occurrence .

The 1Bat aan Death March' i s r eally an atronious brutality. It w.s

sought t o j us tify the Bat ann death march on thc gr ounds tha t it was un­

avoidable as neither transport nor food was available . (R. P. 27764't

Even if t hr:.t we> r e true , it would not just i fy the treatment met ed out

t o t he marr.hing prisoner s . Throughout a nine-day mar r.h, over 120 kilomet r ,

- 1,171 -

unde r a blazing sun , nb~"'ut 65, 000 Americnn a.n0 Fil i.pino priscners \'Je r e

kicked nnd beaten by their guards; the only ddnk they hnd \"las v1o. t r- r from

~cribcu wallons ; thr, cnly f ond, th:::.t whic h W['. S thrm·m t o them by Filipinos

The se ·:1ho through ilJ ne:ss or fatigue f ell cut of' the ma rch -r1cr e s hot or

bo.yone~ted. (R .P. 12579-91)

The Prose cution sought t o meet the ~lain as t o lnr.k of transport by

the evidence in the f om. of an affidavit made by Mn jor-Genero.l i'dng, the

Comm::mding Gc ncr c.l of the t merican Force s at Batar;.n. Fe says, "In clestroy­

ing arms and equ1pment in preparation f or s urrender, I had rPserved enough

Mot or tra.nsportaticn n..l"ld ge. solinc to trr..nspor.t all my troops out of' Bntaan

I pl-::aded, o.f'tcr MY surrender, t }Jo.t this be dona , of'f' cring tc furnish

pc;rscnnc-1 as might l:>c r equired by the J c.pr_a}CSO f er this purpose . • • The

J a pc.neso t old me th-::.t t hey would handle the movement of the pri soners as

thev de sired, that I would h3.VG nothing t o do with i t, and that my t·•ishes

in that conne r.tion could no t be considered." (Exh. 144~ )

1Vhateve r th~t be , J do not think tha t the ocr.urren~e wa.s at all

.iustifia.ble . At the same time I fail t o see ho:·J \ \le can nake o.ny of the

present a~~uscd r e sponsible f'o r it . It is an is0lated i ns t ance of cruelt~

The nnn r e> sponsible for it hu s br-cn made t o cc~ount f or the same t'li th his

life . I ca r.not conne:ct any of the present n('cus cd with this inr.ident.

The Pr cs0ct:tion ~~se r egnrdine tho coplo~nnent r- f the prisone r s of' wnr

upon t asks having r .Jl nt.ion with t he ope r ation of' the v:o.r is the.t the prism

ers r::crc· so r:1mployed bv the Jap~nefs ':ovcrnmGnt in v i ol a tion of the Pre­

visions of Artiol c 6 of the ~r.gue Convcnti0n, 1907, :m d Article 31 of the

- 1' 172 -

Geneva Ccmventi.on 19~9.

Article 6 o:f the Hngue Convention , 1907, provides i.n.!&1: Qlli that

to.sks upon ::hich prisoners of V.'ar nr e enployed "shall have no ~onnertion

VIi th the operati::m of t he war".

Article 31 of the Geneva Prisoner of War Conventi on, 19<9 , states

that "labor furnished by prisoners of war shall have no direGt r elation

with \'lnr oper ations 11 •

A series of offidal Japanese documents, r!hi,.h have been put in

evidence, show t hat the .To.p:mese Government, deliberat ely and as a matt er

of policy, enpaged its prisoners of wnr in such l obors. The following ar c

some of such do~uments:

1. Exhibit. 2010 - o. communi~ation elated 6 May 1942 t o the Chi ef of

Staff of the Taiwan Army. The accused KIMtJltA states, "so that

they can be used for the enlar gement of our produ~tion and as

mili tm·y labor: white prisoners of war will be confined su~l1ess­

i vcly :.n Koren, Formosa and Manchuria" .

2. In the monthly reports of the seoret service police for August 1(

is set out a pln.n to use prisoners of Vl€lr as a result of the lab,

shortage . (Exh . 1972A , R.P . 14509 )

The plan says, "Owing to the good results obtained by 150 Americ

prisoners of >Jar at Zentsuji POW Camp who had been sent to Osakn

in ord:;r to engage .in l~boving works as a neutralizing measure f ·

l abor shortage suffer ed in the Milit ar y works and harbor equip­

ment, the enterprising drcles who were suf'rering from the labor

- 1,173-

shortage n.t seve ral districts nr <'und Tokyo . • • c.pplieti to the

military a uthorities t o allo\'1 t hem t o u se prisone rs of war".

'3 . Exhibit 1970h ·1 l etter liated '22 Aupust 1942 from tht" ec~used

KIMURA as Vice- Minis t e r of War to the Chief of St aff of the

Kwantur.g Army:

11For the reoli 7.::J.tion of the urgent or gani zation of t he aircraft

produ~tion we want to improve the pr esent c 'l.pacity of the Man­

churia Mac hinE! Tool Company ar.cording t o the plan of utilization

enclosed he r evlith, and t o allot a l a r ge part of its improved

r.apacity to the produ~tion of m;1chine "':. ools which are ne~"essary

for the urf:Sent or ganization fer the produ~tion of air ordnances,

ammuni'~ion and a ircraft in our c ountry. " The plan which is

r ef e rred t o envisage s the empl oyment of 1500 war prisoners.

4. Sxhibit 1971A - Foreign Affairs Monthly Report, Septembe r 1942,

published by the Fore i g n Section of the Polire Sureau of the

~orne Ministry, Thi s s peaks nf the l ab or short age problem in Jap

2nd of a decision arrived a t a conf erence held by the Cabine t

?lanning Board, according t o which it YJas decided: "Of the in­

dustr ies in the National i•,1obilization nl an , war pri soners shall

be e mrloyed f or mining , s t evedor i ng a nd e ngineerinr and con­

s truction wo rk f or national de f ense".

5. Exhibit 1967 - l ette r de-t ed 2 October 1942 from t he Chief of Stc.i

of the• Eastern District Ar my to the accused To.:o , requesting his

sanction of t he enpl oyment of t he wa r prison ers in the Tokyo POh

- 1,174 ..

Camp f or , .:Jmongst others ttindustrir~.J l abor f or the expansion of

pror.tu~tj ve pot·Jer 11 at "r.mni tion f actories f or expanding produc ...

tion". This \7as approved by the War iva nis t er,

6 . Exhibit 1969 ·· A report of the Governor of Kanagawa Prefecture t

the ministers of Welfare and Home Affairs, dated 6 o~to'ber 194~,

which states as f ol lows :

'1It i s generally adrni tted by all the business propriet ors alike

that tne use of POW labor had made the systematic operation of

transportation possible for the first time, and has not only pro·

dur.ed a gr eo.t influence in the business circles but will also

contribute ~reo.tly to the expansion of production, inGluding

munitions of 1·1ar."

7. Exhibit 1976- A r eport dated 4 September 194? from the acr.used

ITAGAKI as Korean Army Commander t o the ac~used TOJO . This r e­

port cet s out regulations in use in the Korean POW oamps. They

incluce the f ollovdng :

"Artiol o 2. Not or.e POW must be l eft to time in idleness. All;

appropriate l abor a"cording to their skill, age and physical

str ength, ther eby using them in industrial development and mili­

t ar y labor. "

Regarding t he emnloyment of the Officer prisoners, the proseoution

relied on the ::'ollowinr- documents:

1. Exhib:lt 1961 - On :une 3, 1942 t he Director of POl!' Custody Div­

ision sent a dr~ular t o army uni ts on the sub .ie~t of labor i m-

- 1,175 -

-

-

posed on POW officer s nnd noncoMMissioned officers . It states,

"Although the impo~ition of l n.bor upon POW officers nnd non­

commissioned officers i s prohibited under Article 1 of the POW

regulations, it is the policy of the ~entral authorities, in vie·

of the present condition of this country which does not allow

anyone t o lie i dle and eat freely, and also with a view to ~ain­

taining the health of prisoners of war, to heln them volunteer

to work in accordance with their r espective stctus, intelligence,

strength, etc . Therefore it is desired that proper direction be

gi von e.c ~ordingly."

A similar notification was sent to the Chief of Staff of the

Taiwan Army on 5 June 1942. (Exh. 2003)

~ . On 4 Sept ember 1942 the accused ITAGAKI, as Commander of the Korf

Army, sent to the accused TOJO a report on the regulations en­

forced in the Kore'ln prisoner of war camp. (Exh. 1976) Artic) e

3 of these r egulations r eads as follows:

"Al:_ prisoners of war, including officers , shall work. I3ut

guide ·:.hose o.bove rmrrant officers ar.cording t o status, ability

and physical strength to ~mrk voluntarily. 11

Apart from the question whether the Hague Convention or the Geneva

Prisoner-of-War Convent i on is applicable to this case , the provisions the'

in speak of certain prohibited labor,

·whatever m'ly 'be t he meaning of the expr ession, "direct r el ation with

war operations" in these days of total war, it cannot be denied that thGr

- 1,176 -

-

is sone evide nce of the prisoner s having been use d f or transporting

mat e rials intended for combatant units .

I '.'lould, however, conside r this viol ation o.s a mer e delinquency on

t he pc.rt of the state . These nr e mere ants of state. I \70uld not r.!ake

a ny o"" the accused crimi nally responsibl e for such viol ations . The same

observation nould apply to the cases of compulsory employment of officer

prisone rs.

As r egards the Burma- Thailand railway, the Prosecution case may be

summarized thus:

Fr om August 1942 onward, prisone r s of war 'Nere despatchen from

Singapor e a nd the Ne the!'lands East I ndies t o Burma a nd Siam to construct

a r ailway line fr-om i\c.nchanburi in Thaila nd to Thanbuyzaynt in Burma for

the purpose of s:lpplying Japal'lese troops in Burma who wer e pr epar i ng t o

invade India. The t otal distance wa s ::~.bout 400 kilomet ers and the gr eat e r

part of tha t v1a s over virgin rtount::~.inous jungle, and it vms built fr om eaC'

end nt the same time. I n all J about 46,000 prisoners of wnr v1er e empl oyee.

and, of these, 16,000 died in n per iod of 18 months fr om starvation,

disease a nd ill-t r eatment. (R.P. 5,415, 5,434-41) J apane se source s pl ace

the m~ximum number of prisoneJ•s employed at 49,776 and the deaths a t 7,74E

(Exh . 473, R. P . '>492) I n ::~.ddi tion, from 120, 000 to 150,000 Indonesians,

Burmese , Chinese and Mal ayans we r e empl oyed and t heir death roll from t he

s ame cause s was e stimat Eld a t 60 ,000 to 100,000 , (R.P. ?415 and 5434- 41)

The Pr osecut i on 1 s Hvidenc:e thnt the line rms beinp. construr.ted for

operational re ::~.sons is corrobor a t e d by J npnnese documents tha t came into

- 1,177 -

existence in 1944 . Thus in a report dnt ed 6 October 1944 from Chief of

St.J.ff, Southern A!:'my, t o the Chi ef of Prisoner of War I nformation Bur eau,

the f ollowing stat ement appear s :

11 ••• For strnt egic r easons the completion of this r ail way was most

urgent. Since the proposed si t e of this railway line was a virgin jungh1 ,

shelter, food, provisions and ~edical supplies we r e ~ar from adequate and

much different fr om normal oon1itions for prisoners of war. 11

In a communi~ation received on October 4, 1944, a t the sa~e Bureau

from the Chief of Prisoner of War Camps in Siam states inter alia .

111". t that time • • • provisions and rations were s~arce . nuarters and

establishments WE;re poor and medicol facilities wer e inadequate. Moreover,

for strategic reasons, it was necessary to compl ete the r ailway by August

and the work was pushed forwar·d at a t errific r at e , with the result that

many prisoners of war became ill and many died ." (Exh. 473 , R.P. 5492)

There is ample Pro~;ecution evidence to show t hat the deaths of prison­

ers wer e due to :.11-treatment , excessive l abor, star vation, r'lisease and

medical negl ect. (R. P. 11411··41, 11478, 13000-11, 13020- 35; Exh . 1561- 70,

Exh. 1574-5, 1581~)

11F" Force a::1d "H" 1~orce arrived in Thailand fr om Singapore in April

and May 1943, respectively . ':. he latter fo rce was 3,000 str ong and had a

death r oll of 900 in seven Months .

The 1ecision to construct the ra ilway was made by Imp~rial Gener al

Headquarters in response t o a r equest from S~uthern Army Headquarters .

(R.P . 14633 ) Subsequently, in February 1943 Imperial General Hr-'adquarter s

-- 1,178 -

decided for operational reasons to speed up th~ ~nnst-,ru~t.ion by four wonths

but later extended the n•3W period bv two months . (Exh . 475, R.P. S51 3)

The result was ths.t the line was completed in o~tober 1943, two months

earlier than was originall y planned. (R.F. 5437)

The Defense does not deny the fa~ts generally, but attributes the

death rate to the early onset of the rainy season preve11ting the t ranspor­

tation of.' suDplies . (ExlJ . 475 , R. P. 2741'2 - ~4 and 27746) I t says that (1,;_

Southern Army Commander, realizing that t he su,.cess of the construction

depended upon sanitation, sent medi~al teams to the area to study and im­

prove the sani tar:r conditions , to investigate mal aria with a view to ~on­

trolling it, and to uuri1'y water supplies . The Southern Army Headquarters

had been advised by its medical officers of the grave daflP-er o~ the prison­

ers ~on tra~ting diseases, and from the enn of 1942 onward of thP grov1ing

death rate among them. ("1 . P . 2.7746)

Even if this were so, if the Japanese had exer,.ised every ~are and the

d~aths were solely attribiJtal.,le t o tr-e unexpe"ted onset of' thP rainy season,

they would, in thP circumstances , have committed a war ~rime . 0outhern

Army Headquarters had no right to send pri soners of war to work ~n an area

whi~h it knew to be gravel v danrerous to health, ami further, it had no

right to employ prisoners on the ~onstruction of a railway line to be used

for military purposes . There can be no doubt that it v1as the i ntention of

the Jc.panese at that time to use the line solely for mil:i.tarv purposes, t<>

supply anct r einforce their troops in Burma.

But it was clearly not the rainy season that "aused the deaths althoueh

.. 1,179 -

it may have in~r~ased them. As early as March and April, even on the

Japanese figures, the monthly :'Ieat h roll already e"l(~eeded 200. If' the ra.L-y

season han then already commen~ed , why send 11? 11 ann 11 H" forces there at the ")

e nd of April and i n May:· ( R. P. '5439)

Further, the deaths were almost entirely limited to the p:ri sonPr s C' '

war .

It follows that the dt=!aths among the prisone rs ,·;er e due to the +'act

that they wer e s ubieeted t o connitions to Vlhich the Japanese were not sub-

j ected . They died fr om :ill-tr8a t ment, excessive l abour and unnenessary

medical ne~lent ~nd starvation .

This i s the :?roseoution cuso. I would divide this case into the

following two parts:

1. Employment of the prisone rs of r1ar in the wor k having direct re-

lation with war oper at i ons ;

2. The inhwnan t:reatment of the pri soners of' r:ar.

As re~ards the empl ('yment ~ I do not hesitate to say that the a~r.used

TOJO was fully responsible for it; but t his violation of the :rules r egard-

ing the labor of prisoners of '.'!Ur is a mer e ar.t o-~' state . It i s not r.rim-

inal per ~ and I vmuld not make him criminally liable f'or it ,

As r egards the lnhuman treatment of the prisoners , during this emDloy-

ment , the e videncE! docs not satisfy me that it r;as duo to any inar:tion on

the part of any of the accused , including TO~iC:, or that it r;as su,.,h as r.ou.ld

have been, in any r.ray, for eseen by any of the accused .

The most important witness examined in thts conne~tion is Colonel

- 1,180 -

Dalrymple Wild . The rel evant portion of hi s evidence com~en~e s at pa~e

5,434 of the r eec rd. An analysis of this nvidence will di sr.l0se the

1. From September 1942 the prisoners were taken over by the or jsoner

of i'Jar E•dministratior. department.

? Until SEJptember 1942 the prisoners t1ere under the control of the

:25th Army Headquarters and V·'Orking camps were under the ~ontrol of

diff'e r ent Japanese units.

(a) In Septembe r 1942 they were taken over by the administration

center in Tokyo.

(b) Malaya and Sumatra were ~rouped top.ether in one prisoner of

war area under the command of Major Fukuye and of t~e prisoner

of war ad'1inistration.

(c) As regards care and administration of' prisoners of' ~ar, he

took his orders from Tokyo . He had no duties whatsoever out-

side that of administration of prisonBr s o.f war .

3. The ba.s:Ls of administration was the same r egar ding the Burma-Siam 1:-

railvlay' .he <!OmT"landing officer being a major t?:ene:ral in charge

of POW administ ration in Siam .

4 . (a) From August 1942 onwards, men Y1e r e being dispatched from

Singapore t o thc-3 Burma- Siam railway .

(b ) Thcy i ncluded a :_argo number who had cof.le from the Netherlands

Eas t Indit3s to Changi camp.

(c) Some had bee n ::mnt by sea to Formosa and others by sea to

Bu:r:-ma.

- 1,181 -

-

-

5, (a ) Fri s one r s began to l eave Singapore to i'Jor k on the Bur ma­

Si lJ'!l r a il1 ·ay in Aug ust 1942.

(b ) 'I' he first t o go to Burma was a party or _\ustralians, under

B·r igadier Varle y, called "A" Force .

(c) The witnes s a~companied 11F " Force . They started in thG L ' ..

pa rt of April 1943. They were 7 , COO in number, of v1hom about

3, 600 we r e· .Aus tralians and 3,400 we r e British.

(d) 3,100 out of this 7 1 000 die d. The s urvivors got back to

Singapor e i:1 ApriJ 1944.

(e ) The total casualtios during the "Ons truction of' the ra~lway

amounted to 16, 000 out of 46,000.

(f) The ¥.o rk was f i nished bv the end of' o~tober 1943.

6 , ( a ) The whole of' those d eaths wer e duly re~orded ,

(b) The wi tness ' s part;)" remained under Malaya PO''f administration,

Tl:e figures we re a'-ways sent to the headquarter s of the

Japanese a t Changi camp for onward transmission to Tokyo. As

regards the other parties, they were under the s c1rne PO"'!

ac.ministration . Their fi -gures were similarly r eported a~

they o~curred to the major general' s headqua rte r s a t Tarso,

:Jj.am , One copy was forwarded by Ma.i or General Sassa to the

h E'adquarters of the POll a dministration i n Tokyo .

(c) Ther e we r e nearly 1 50,000 Asiatic laboure r s employed in the

constru~t i.. on works. Of them 100,000 died.

7. The r.ti tness give s de tails of the •uork done by the prisone r s of v1ar

- 1,18:? -

and of the ill-treatment beginning from April 1943.

From the evidence of this \litness, it becom€s a pparent that t he over •·

zeal ousness of the local offiners were mostly responsible for the di saster

that happened . At page 5,445 of the record we ar e r:iven an instance of

such over-zealousness on the part of Major General Arimura at Chanr.i . -:-!tt

1·1itness explained to the major general that there were not 7, 000 fit men

in Changi and that the most the witness could raise ··rould ~e ?,000 men.

The wl tness then says: "Major General ARIMURA 1 s hP-adquarters rJere most

reassurinr.; about it all. We •:ere officially tol d that \t'€ must take two

thousand unfit mEn ··rhom the Japo.nese agreed to nlassify as non-walking

sick. I was told that the ~ole reason .for the move ~vas that the food

situation was getting diffi~ult on Singapore Island; we were not e-oing to

working ~amps but to health ~amps; it rms a nice pla~e in the mountatns,

and none of the men wou.l~ be required to leave the ir health c~ps to work;

the most that "le should be r P-qui r ed to do ·1ould be to look after ourselves

and do necessary ·'ork inside the r-amp; it would be in the best interests

of the: sick men t.o take them because they r;ould have a better chance of

r ecovnring in these health camps than if they r8rnained in Changi, as the

food vras short."

This only shov1s over- zealousness on the part of General .ARIMt..ft?.A and

his roguish <'baracter. Cert'linly this coulo not in any r;ay be ~onn0 cted

1'•ith any steos tc1ken by ToJcyo. Then again, ·1hat r.ro are told by Colonel

1Vild at page 5,1.57 of the r ecord only i ndicates the brutalitv of a cor.-poral.

Fifty men were sick. The corporal, in spite of that, v:ould make them

- 1,183 -

march during the night. The ·ni tness took these fifty men to a Jvnanese

r:1ediral offi cer. The Japanese rorporal ~oncerned ,,ms a l so ni th the party .

The menical officer gave them some medical treatment and cgreed tha t

thirty-six of' thRm should not :narch that night. At the witness 's sugges­

tion he gave this as an orde r t o t he Japanese corporal. Yet when the

fifty me n vJere broup.ht back to the camp the Japanese corporal pavo in­

str uctions tha t onl y fourteen should stay be hind that night instead of

thirty-six. After r eporting this again to the Japanese mcdi~al offiner,

the witness surceeded in getting an or~er in ~Titing from the ~ediral

office r t o his ovm sergeant major that t he thirty-six men should stay. This

Ylas given to the corporal. I n spite of that, the corpora l made the men

march.

3imilar is the story of ove r-zealousness shovm by Lt . Colonel BANNO,

the Japane se CommD.nder of 11F 11 Force . The arcount is given by the witness

a t pages 5,459-60 of the- r Mord.

The Australian mar 0hing party \'/C.S being a ccommodated dthin u fow

yards of huts :l.n nhich c. l a rgo nu'llber of .~siatic labourer s were dying from

chol er a . Colonel Harris described the situation to Lt. Colonel Bt..rmo at the

staging camp ut Konquita and r1arned, 11You must either stop the march or by

pass Konquita, I f you don 1 t, ;ve will have a violent outbreak of cholera

in all our c a'l!ps within a ·.•Jr>ek". Lt. Colonel BAl"'NO vms obstinate. The

consequence of th'3 obst:i.nc.cy r•as outbreak of chol er a in the Austr alian march­

ing pa rty. Lt. Col onel 9AmW was an officer of the pov· administration of

Mal aya and SUMatJ•n.

- 1,184 -

Similar again is the a ccount of unne cessar 3' brutali t y of' some of the

J apa nese engineers oesr.r:.bed by the '~'.'itness a t page 'i ,1~77 of the r e r.ord.

The actual perpetrators of these atrocities are not before us. I believe

those of them tha1~ could be p:ot hold of alive have already been made to

ansVJer for their brutalities. Calonel Wild himself told us in his evidence

recorded at pages 5684-~5, that since his engagement "in war crimes

investigation i n ~)outh East Asia , South East Asia Command" nearly four

hundred cases had been brought to trial; of these, in over three hundred

cases, the trial had been completed resulting in "well over a hundred

death sen tences and about a hur.dred and fifty, t e r ms of imprisonment".

These were exclusjve of those b rought to trial by Australian Courts, Dutch

Courts and Americ€n Courts . So , there i s no sr.ope for any a pDrehension of

any rni staken clememcy having been shown towards any of the alleged per­

petrators of all thes0 f oul acts . We are here conce r ned with a diffe r ent

set of persons. Certa:i.nly nothing has been placed before us '.vhtch wollld

entitle us to say t hat they should have e ven 4'-or~;seen such brutali ti.es or

over-7.ealousness on the part of the se persons.

The evidence of Colonel wud rathe r '?oes to show thRt t hese J Mal

officers were conscious of the ir own gu1.1 t in showing sur.h over-zealousness

a nd thAr efore resorted t o steps to ~onr.eal the e ffe nt of their over-zealous­

ness from the Tokyo authorities. The .Japanese medical of' fine r i n terpreter

of 11F 11 Force c anoe lled the wi tne s s 1 s partv to a l ter the <"a use o+' death to

diarrhea . Similar suporession of the ~ctual state of affairs i n the local ­

ity is suggested against the Kempeitai at Kanchanburi nt page 5,485-5,4~6 of

- 1,185 -

the renord by the Ydtness .

The evidence of this \"i tnc!'ls also make s i. t rlear that th0 constpuntion

of the !'llilway in question was not devised by the r el evant authorities in

Tokyo in expe~tat:Lon of utilizing the prisoner of \'Jar labour. Lay lab.:.ur

was ver:r largely ::-ecrui tE~d for the purpose. Prisoners of war wore emp) o~rct~

only as a last resort.

A pe~uliar use has bee n ma de by the prosecution of its Exhibit 475.

This exhibit purp()rts to be a report on employment o;: war prisoners in the

Siarn- '9u rma raib-:a:r constru~tion. The prose~ution offered it in evidence

and des~ribed it ns a r eport by the Japanese government on the Burma­

Thailand railway.

The prosecution told us that "this wns a document prepared by the

Japanese War \liniBtry tmmediately after the surrender of JHpan and forwarded

by them on the 19 De~ember 191~o5 to the Supreme Commander, but prepared of

their own motion and not on demand". We re~eived it in evidence on 11

September 1946 and marked it Exhibit 47'). Obviously it was a docume nt

sought to be relied on by the prosecution. Subsequently, however, the

prosecution WPnt on seeking oont.radictions of its contents f'rom the ·.'li tness,

Colonel Wild, as lf it were being relied on by the defense . The defense

ce rtainly did not rely on this document and, even if its nontents be of

any evidential vnlue , it Vloulci only be a piece of evidence against them to

be weiehod ~Y us ~dth other evidence. I t s having been prepared by the

Japanese 1Jiar ~;1ini stry would not, in my opinion, give it any rrr ca.t er weight

as against the pr<"sent a~cused, specially when we knovr that it >7as prepared

- 1,186 -

.§fter the surr~nder of Japan and we do not knm\• on what materials , and

for what purpose it might h'lve been t hus prepared by its nuthors. If t his

re~ert is founded on any relevant mate rials, such materia ls must have been

a vailable even after t he surrender; and ~e were entitled to have those

materials before us in order to see what conclusion we coul<'l drA.w for oL:.r ·

selves from them . If the r e we r e no such materials before the author or

~.uthors of the r eport , the report is ubsolutel y \•ortl:.less as a pie ce of

evidence and i s only calcula t ed to crente pre .iudice a.g'linst the pre sent

accused ,

This r e port is divided into three parts: The first part re~ers to

pr otests by alli ed pov1ers; the second purports to Rive de tails of investi ­

gations; and the third p~.rt gi ves the c onclusion ,

The final conclusion of the r eport stands thus :

"1 . The -Poregoing is un explanation of the drrumstance s r:hich ~om­

pelled a heavy toll of lif~ during t he urogress of thr. ronstruction ,,,•ork.

In the +'inn.l analysis, cause s o+' the tragedy may be tra"ed principally to

the pl a cemont of a time limit on tho constru~tion, the immense rtiffi~ulty

in making thorough pnparntion t:tnd to the precipitancy 7/i th \'lhich the

Japanese soldiers, despite t reir l ack of nx~cricnce in such large- s~"'ale

oonstru~tion vJOrk nnd Meagr e s~ientific equiprnrmt, dnrAd to <'arry on their

rror ·-{ in s~.rict obedience t o order s Vlhich they ~h£1.ractP-ri sticaliy r egarded

as imperative . 'Ihus the occu!"'r-encu of the ca sualtie s , it must be declarf d,

was by no means duo to any deliber a t e intention on the part of the Army

Authorities.

- 1,187 -

"As r egards the enployment of prisoners of ·.:c.r in the .:J.bove construc­

tion work, it may· be stated tha t c.t the time the J apanese Army as a whole

entertained the ideas tha t the employment of orisoners of war in any work

other than :nili t o.ry operations wa.s not a brea"h of the Geneva Convention,.

Furthe rmore, it is to be i nsi st ed tha t the incident was of a rudi"ally

different character from the so -ca lled maltreatment of prisoners of "iar.

"2. The incident, already st at ed was an inevitable outcome of the

- situation then prevailing, and, if onyone is to be called to a ecount for

the drDadful death r a te, the responsibility ought to be placed on the then

Chief of the GenEral Staff (General Sugiyama) who ordered the ~onstruction,

the War Minister (Gene r al Tojo) who sanctioned the employment of prisoners,

and the Commander-in-Chief of the South Area Corps (General Terauchi) v1ho

was entrusted with the construction on the spot .

"3. As r egcrds i ndividual cases of maltreatment of prison<>r s of wnr,

it is de sired thc t investiga tion be started upon the further receipt from

the Allied Powers o.f a. r eport o.f the det .'lils , particularly the r anks, and

names of the suspected offenders, and if, as c. r esult, thoy s hould be found

guilty severe measures should be met ed out to them. n

The author of the report truce s the ca uses of the tragedy to the

placement of a t i me limit on the construction. The witness, Colonel Wild,

gave us just another vers ion.

Col onel Wild deposed: '' l.'lfe told the J .:..panese th~:1.t the way they we r e

treat :i.n£; the ir lrLbor, both Asin.tic and military, was, from a soldier ' s

point of vi0w, worse the.n o. r.rime; it vw.s n blunder. We told thorn, and I

- 1,188 -

consider no"' , tha t if they had tr8ated their lc.bor properly ond fed it and

housed it c.nd givan it r ec son<:>.bl e working hours , they would hr:ve f'inishe:d

that railway by the time they wanted to. We told them then, a.nd I con­

sider now, that a3 a result of the way they treated their l abor they we r e

months l ater than they intended in finishing thc.t railway, and in con­

sequence lost a campaign which it was intended to supply in Burma."

The urgency of the complet ion of this r a ilway was not responsible for

the disaster that happenE~d. It is in t he evidence of Colonel ~·~·nd that

there might have been no difficulty in the completion within the snheduled

time had the prisoners and the ln.bourers been treto.ted well. The ma1trec:.t­

ment was resDonsible for the delo.~r~ not the shortage of time, responsible

for the disastE>r. Those,, therefore, who might have been r esponsible f'or

fixing the time limit diet not in any way miscalculate nnd certainly their

c o.lcula tion was not re sponsible for what happened to the prisoners .

Whatever value the report may otherwise have, ~ertainly it has no

evidentiary value ns to the apportionment of guilt made by it. In my

opinion, in the absence of the materials on which it mi ght have been based,

this r eport should not ha ve 0ome in a t all.

The members cf the general headquarters and the War Minister cert ainly

\'Jer e respcnsible for the empl oyment of prisone r s of w3.r in this construction

work. That aot is not mfil,Q; !n -~ c.nd I woul d not mnke ::my of these persons

criminally liable for it.

As r ee:urds the di saster tha t bnppened to the prisoners of ·;vur, there

is no evidence before us thct t her e we re nny mnteri8.ls before these authors,

~ 1,189 ..

whiGh should have led t.hc::Jm to foresee these consequennes. Most of these

consequences we r e due to the over-zealousness of the lono.l officers. It

is dif~inult to tr~ce the responsibility for this disaster to the War

Minister or any other member of the cabinet i n order to fix o.ny nri:ninal

liability on them.

~spionuge occupies ~peculiar position in international law. It has

always been r.onsidered lawful for o. belligerent to ell1ploy spies to obtain

the ncr.essary informntioJ'l.

l.rticle '24 of the Hague Rf3gula.tions eno.r.ted trot ruses of' vrflr and the

employment of' measures necess~:~.ry for ol)taininp.: information a'bout the enemy

nnd the cmuntry a:re considered permissible. The f'a,.t, however, that these

methods are h.wful on tho part of the bP-lli:;rerent who employs them does not

prote~'t from punishment sunh iudiviciuals us a re engaged in procuring sunh

information. ,A_lthough ['.. belligerent ants lawfully in employing spies ~nd

traitors, the other belligerent, who punishes them, likewise acts lawfully.

Persons committing nets of espionage are cons idered vmr criminals and may

be lawfully punished. The usu£..1 punishment for spying is hanging or shoot­

ing. A spy, ho\\ever, m&y not be punished v:ithout a trial before a court-

martial.

The prosecution case is that some of the prisoners of wr:tr we r e <-on­

victed of Pspionnge and sentenced to death, o.nd one v1as convicted of

attempted e-snion11ge, and sentenced to fourteen ~r~ ars imprisonmen~. It is

not the prosecution case that any of tho prisoners were punished in this

respect without a trial.

- 1,190 -

I do not think anything h!ls been placed before us which would entitle

us to sa:r that the convictions of espionage charges rJere wrongfully made.

At any rate, these prisoners were nharged of espionage , tried by the proper

organ and convicted by the some . I do not see how "Ie 11an make any of t he

accused criminally r esponsible for it.

The treatment mete>d out to the .Allied airmen is one of' the gravest

of the ~barges against Japan.

The prosecution case, in this respect, hegins viith the treatment of

the crews of the Americ3n planes ~ommanded by Colonel Doolittle which raid­

ed Japan on the 18th April 1942 . The crews were captured in Chinn. The

prose~ution l'!ase is that subsequent. to their r-r.pture "Regulations for the

Punishment of Fnemy Airr.revt" \vere made in China by the ar.C'Used 1-iATA on the

13th August 1942. The crens of these plnnes vrerc tried by court-martial

under these regulations and were sentenced to death. Later, the sentences

in resper.t to five of them were commuted to life imprisonment. The remain­

ing three v~re executed. These r egulations had provided death penRlty for

bombing, strafing or othc~;ise attacking civilian or non-militnry otiectives .

In supDort of this case reliance is plr..ced by the prosecution on exhibits

3129 to 3131 record pages ~7902 to ~7908 and exhibits 1991 to 1993 record

pages 14662 to 14.670.

The prosecution then makes cases of cxer.ution of captured airmen with­

out trial in the following pla.ces :

1. Bougo.inville - Two cases i n December 1943 and one in May 1943.

:2. New Brit.ain - One case in July 1944 and another in November 191+4 •

- 1,191 -

3. New Guima One case nn 29 Mr·.rch 1943 and a.nother in 1944 .

4. Ambon - One c nso on '29 AuffUst 1944 and another on ~1

Sept ember 1943.

5. Celebes - Tv1o cases on 13 September 1944, eight in the b.tter·

part of September 1944 , nine in o~tober 1944, onG

:Ln January 1945, two in February 1945, one in .Tuly

-945, four on 23 March 1945 a nd another about June

or J ul~r 1945.

6. Batavia - Seven <~uses in June 1945.

7. Borneo .. ~~hrce r.ases in February 1945.

8. Burma - One inc:idc nt in February or March 1945 .

9. Hankcaw - I ncident of 4th Noveml:>er 1945.

10. Philipnines - One incident on 26 March 194.5 .

11. Singau6re - One co.se in De~ember 1944 or January 1945, anothe r

in JunE! 1945 and sever al others bet ween f·!uy and

J'uly 1945.

12. J o.po.n Prope r - E;everal ~nsos froM 11 May 1945 to 15 August 191~-5.

Exhibit 1992 is o. communication dated 28 July 1942 "dispatched from

Vioe War Hinist er KIMUqA, Heite.ro," to "eo.ch Chi ef of Staff stationed in

.Ta.pan," regarding "Treatment of EneMy Air Cr ew Members". It runs as

follOWS I

11 I request ycu to take note r..nd unde rsta nd that the follovd.ng de~ision

w&s made in r e(?a.rc to the trr;atment of (;nemy a.ir crew mer.1bers ''>ho enter ed

our ,iurisdir-tion with the ob.icct of raiding Japanese t erritory, Manc hukuQ

- 1,192 -

and our r egions of oper ation:

111. Those who do not violate the:· \I.J.r-tiJTJe international law shall

have to be t r eat ed as POWs und those who showed actions of violat­

ing the said l aw shall be tre~ted as vJnr-time capi tnl crimim.ls.

"2 . Defense Commander-in-Chi ef of various plnces (int'lluding troops

stationed in Japanese t erritory, outside Japan and the Governcr

of occuried Hong Kong) shall send for court martial sur.h enemy

air ~rew members, who ente red the r espc;!ctive 5urisdintion and

a re suspected of deserving tr~atment a s wnr-time (lnpita l criminals,

In r egard to the n.bove (lourt martial , the provisions of the

Speci ally Established Court ~brtinl stated in the .\ rmy Court

Mc..rtial Law shall be applie<i. "

Exhibit 1993 is a "Notificat ion of Matt ers Pertuining to the Treatment

of Crew Members of ~aiding Enemy Pl anes", of the so.me dute from "Impe rial

Headquarters, Army Sectj_on Staff " to "Mr. Jun ATOMIY.A, Chief of' St:cff, Chinn

Expeditionc,ry Forces". It runs as fol lows:

"Article s of...!g_r of 00 ArJT!Y (Draft)

!'Articl£....1. These article s of war shnll be npplit'lable to the r.rew members

of enemy planes r aiding our Imperial Domain, Manchoukuo or our zone of

operations and falJ.ing into the powers of 00 Army.

"Arti cl.!Ll. Those having nommi ttod the ants listed belov1 shall be subjected

to milita~! punishment:

111. To bomb, straf6 and conduct other type s of ottar.ks for the pur­

pose of threate ning and wounding or killing the ordinary popul::l.Oe •

.• 1,193 -

-

"~ . To bomb, strafE! and conduct other types of ~tto.cks for the pur­

pose of destroying or ruining private properties possessing no

mili tar;.r charaeteristics.

"3 . To bomb , str!J.fe and <:onduct other types of attacks against tar­

gets other than military targets unless inevitable .

"4. To conduct outrageous and inhuman acts ignoring humanity, besir'l.cs

the afo rementioned three paragraphs .

"This is a lso 9.pplicable to those corning to att ack our Imperial Domain,

Manchoukuo , or our zone of oper ctions rli t h the purpose of r.ommi t ting

the nets mentioned in the above paragraphs, but having fallen into the

powers of 00 Army pr ior to havj.pg accompl ished them .

"Article 3_. The military punishment shell be death . However, depending on

the situation , it may be changed to life or imprisonment of over ten

years .

"Article 4. Death shall be by a firing squad. Imprisonment shall be at a

place to be desi~nated l ater, and they shall be subje~ted to prescribed

l abor .

"Article 5. When specific reasons exi st , the execution of military punish­

ment shall be suspended .

"Article 6 . In re~ard tc• imprisonment , regulations pertaining to penal

servitude of the ~rfutinal l QW shal l be applicRbl e , besides those st ipu­

l ated in theso articles af war.

"SqPJ?l em<?nt arv Pr ovisions

"These articles of war sho.l~ become effective as of __________ day of

- 1,194 -

__________ wonth of ------·----------year.

"These r.rt ··.cl es of war shall be applir.able agains t de post facto acts ."

Exhibi t ·: 991 i s the "Regulations for Punishment of Enemy Air Crews"

dated 13 ' u~st 1942, obviously adopting the above draft. The Regulations

stood thus:

"Article 1.

"These mil i tax·y r egulations shall be applir.able to enemy flyers who

have r aided ,T .ll')anEl se territories, Manchukuo, or our operational areas and

have come wi~hin ·~he jurisdiction of the Japanese Expeditionary Forces in

China.

"Artic:e 2.

"Thos~~ who have oomm:i. tted the following acts shall be liable to mili­

tary punishment:

11 (1) Bombing, strafing, and othe r e.tt acks v.rith the object of threatening

or killing and injuring ordinary people .

"(2) BombinP:, strafing, and other attacks with the ob,ject of dcstrcying or

damaging pri v<:. te property of a non -military no.ture.

"(3) Bombing, strafi~, and other ntta~ks against ob.je~ts other than

military obje~tives, exce pt t hose carried out under unavoidable

oircums t a nnes .

11 (4) Violati~ns of wartime international law.

11The same ~hall be appli~able to those viho , with the object of O£'.!'rying

out the aots enumerated in the pr eceding paragraph, have come to raid

Japanese territori•3 s, Manohukuo, or our operational areas and have r.omo

•. 1,195 ..

within the ~urisdi~tion of the .rapancse Expeditionary ii'orce s in China before

aocomplish~ng t his object.

"Ar ticl e 3 .

"Death sh0Jl be the military punishme nt. However, life imprisonment or

more than ten ;·ears confinement may be s ubstituted f or it af'cording to

e xtenuating o j.rcumstunce s .

"Article 4.

"Death ~hull be by shooting.

"Confin~ment shall be effected in a detention place and pr escribed l abor.

imposed.

"Article 5.

''Under special circumstances t he execution of military punishment shall

be remitted •

"Article 6.

"In r espect to confinement, the provisions of the criminal l ::1w concern­

ing penal servituce shall be correspondingly applicable, in additi on to the

provisions of these milit~ry r egulations.

"Supplementary Re13:ulati ons .

"The se military regulations shall be r nforced from 13 Aueust 1942

(Shown 17).

''These milita l'Y r egul ations s hall be applicabl e also to the ucts

committed previou~! to their enforcement.

"ProtJlnma t :.on Ap!)endix

"Enemy flyers who have raided Japanese t~rritories, Manchukuo , or our

- 1,196 -

operational a r eas, come ·.vithin our jurisdiction, and violated wartime

international law shall be tried qy court martial and sentenced to either

death or henvy DU:U.shment as important war criminals."

Exhibits 3129 and 3130 are the defense documents, showing the trial

and conviction of these fliers by a court martial.

The 0-harges :Ln the ease of the execution of the allied airmen fall

under two heads: (1) Execution on trial a~d (2) Execution without trial.

Under the heading, Execution on Trial, it is alleged that this trial

took pla0e under an ~ 129st fc..c.E law and that this making oi.' £2f ~1

f~ law itself vras a crime.

I have already considered the question of the scope of legislative

power of a belligErent ir.. respect of the trial and punishment of prisoners

of war for war crimes, and have denied this right to any l:>ellirrerent power ,

including the vi~tors.

There I have pointed out how the Tribunal at Nuremberg a~cepted the

Charter creating that Tribunal as defining war ~rimes and ther eby giving

it a binding law in that r espect. It seems tha t the victor pov;ers think

that internati onal l aw authorizes them to make law in th;is respect . V'lhat­

ever be my views, if the victor nations, and , for the matter of that, so

mc.ny ,judges of the t ribunals set up for the purpose of trying the war

criminals could hold that it vm.B open to the victor no.tions to ~reate ~

J20s t fa£!& l aw for the tri al of prisoner s of war, I would be reluct::mt ta

fix any criminal responsibility on the authors of the .§! post facto law for

the trial of allied airmen . I should not a3cribe any !!!Ql.s!: fi~ to this

- 1,197 -

action of theirs,

Tho Charter, we should remember, not only gn.ve !2 !'.2.§1 fac.t.Q b .w but

gave it not even for general purposes but for the purposes of trial of

the particular p::-isoner:3. It was ~ :eost facto l aw meant not .for ~:tll

people but for a special person or a spedal group of persons.

In judging ·che bon<~ fide!i of the authors of these regulations, we

must remember that as y1?.t air warfare is not provided with any rules of

conduct. The states represented at the Washington Conference of 19'22 on

the limitation of nrmnrne'1ts decided on the !1-ppointment of a nommission of

jurists charged with the task of proposing a code of ai r warfare rules.

The British Empire, the United St at t- s of !\merica, '!:ranee, Italy and Jap,.'\n

were represented at thc.t conference. Holland vm.s subsequently in vi ted t~

pnrticipatc in the work of the commission.

In 19~3 the Commission produced the proposed code of rules. This,

ho'Never, was not r<~tified by any of the Powers. The code is of importa.nce

only us an authoritative attempt to nlnrify and formulate rules of law

governing the use of ai rcraft in war; it will doubtless prove a convenient

starting point for any future steps in this dire~tion. But, in any case,

this has not as yet been done , nnd it seems none of the belligerents in•

eluding the allied powers paid any heed to these rules,

The Commission made certain rules rega.rding bombardment~ They stated:

"The sub,ject of bombardment by ai roraft is one of the most difficult to

deal with in framing nny code of rulos for aerial warfare. The experiences

of the renent war have left in the minds of the '"·'Orld nt large a. lively

- 1,198 -

horror of the havoc whicJ·. ~an be wrought by the incUsr.riminc.te l aunching

of bombs and proj ectiles on the nonoombatcnt populations of' towns and

oities . The conscience of' mankind revolts against this form of making war

in plar.es outside the ar.tual theater of military operations, and the f eel­

ing is unive rsal the.t limitations must "be imposed."

In its proposed Article 22, the Commission suggested "aerial bombard­

ment for the purpose of t e rrorizing the civilian population, of destroying

or 0~maging private property not of military r.hara~ter, or of injuring non­

r-omb.3.tants is prohibited 11 •

In Article ?.4 it suggested :

"1. /;.erial bombardm'mt is le-'!itimate gnly when direoted at a military

ob;lective, that is to say, an object of which the destrurtion or injury

would constitute n di stinGt mil:Lte.ry objer.tive to the belligerent.

11 2. Such bomba rdment is l egitimate onJ2: whe? dirented ex~lggively at

the follovdng obje~~ti ves: Mili tary forces; military works; military

establishments or depots; factories constituting importa nt and 1!1811 - known

ce:nt.ers engnged in the manufacture of arms, onmuni tion or distinntly n~ili­

tary supplie s; limls of communi r-ation or transportation u sed for mili tc1.ry

purposes.

"3. The bombardment of cities , towns, villages , dwellings or buildings

not in the i mme diate neighbourhood of the operations o~ l a nd for~es is

prohibited. I n cases where the ob,jective specified in pa;a.mh 2 are so

situated t hat t~cannot be bombed without the indiscriminate bombardment

of the civilian_EQiulation~ thz_a ir,..raft must abstain fro~_QQ~l§r~~ •

... 1,199 -

"4 . In the immedia te neighbour hood of the operations of lund forces,

the bombardment of cities , towns , villages , dwel lings or build j_ngs is

l egitimate, proviC::ed tha t there exists n. r easonable presumption that the

military con<'entr;:;.tion is sufficiently important to justify su~h bor.bard­

mont , having re~ard to the danger thus r.aused to t.he ~ivilian popul::tion ,

" • • •

We are tol d that there were four main viewpoints ~"lhich the Commission

took of the work cefore it:

1 . Humanitarian;

2 . National point of vi ew of the respe0tive del egations;

3 . The jur idic point of view with r egard to the l aws of vmr;

4. The combatant point of view with regard to the conduct o-r w::1r in

which the combatant se ~vices consider ed their re sDe~tive nations

both as neutrals and as beJliferP.nts .

We are furthet' told that "with regard to the r evision of the- laws of

war fran the humanitarian point of view, all nations and all memb~rs of

eac h de l egation we::-e agreed that it was desir able that the lc.ws of war

should be such as ·::,o prevent suffer ing of pe r sons or destruction of private

property , except suc h us was inevitable for the accomplish;nent of the war

objective . Every now and then ln the cour se of' thE' discussion , someone

wo uld r ai se a ne v; the humanitarian point and immediately therP. would be an

echo from the r epr esentative s of every other national d0l egation that his

country was be hind no other in jts desire to limit the horrors of war . But

although the public at large in time of peace and in a state of emotional

- 1 , 200 -

rest sees only the disturbo.nces of wnr, p:overnments, more +'oreseoing , know

thnt wars must O~"~ur . Subsequently they are unwilling to ~~·mit pu~lic

opinion of the ir r esoective nations in time of peace to dr i ve them to agr ee

to arrangements by international conventions which the sam,., public under

the influen~e of war emotions would be the 'first to ur~e t hAir governmer •.s

to break. Thus, t.he codes as agreed uoon wiP. s~"arcely sa tisfy the most

ra.di~al pacifi sts and hun:.anitarians."

II From the other three points of vien the r e wns clea va ge of

opinion in the Commissior1. In the f ormulation of the rule s of war for t hese

nev1 agencies, each na tion seemed chiefly guided by the nrinciple o.f pro­

moting its own national policies and its position in the ''lorld, negle~ting

neither the point of neutral nor of beEigerent. Er1ch national delegatj.on

was a unit in standing for a ~ode which should favor its national situa­

tion , • • • But ther e vras anothe r line of ~lec.vage mere or less visible ,

running between the juris ts f ormi ng the Commission a s a v1hole and the

t echnical advisors a s a whole. The majority of the commissioners had

little or no t echnical acquaintance with the art a:1d Practice of war. Some

seemed inclined to believe tha t the course of war even when great nationel

emotions wor e aroused, might be guided by the "Jhrases o.f a code c-f rules

previously D.~?reed upon. They did net a ppear c.h ;uys to r ealize tho.t c. t uny

time the code of act::epted rule s of v~a.rfare is based almost entirely on past

experience and tht~t when a now war arises, new sor.io.l, eoonomir. und

be llige r ent condi':;ions \7:..11 m£l.ke the existing oode more or l ess unsuitable

to meet the exigencies of t he situation rs de veloped in the r.ourse of the

- 1,201 -

current v1nr • • • f' The CommL>sion, in suggesting t.h'' rules of bomba rdment, took this i ntQ

n~oount. I t .s 3.id1 "C'n the other hand, it is equally cle:.::.r that the air­

craft i s a potent e ngine of war and no stnt e whinh r ealizes the psssibil i t y

thc.t it may iLself. be- c.ttnckcd , and the use t o whi~h its adversary may 0 1t

his air forces r.an take t he risk of f e ttering its own liberty of action to

c.n e:v·.t e nt wh:l ch would reBtrir.t it fro!ll a ttacking its e nemy where that

adversa ry moy l egitimately be attacked with effer.t ."

The CQmmisss~on, therefore , consider ed i t u sel Gss t o ena~t prohibitions

unless thfl r o was nn equally cloar under s t anding of wha t c onstituted l egiti­

mate objeots of attack . It is pre cisGly in this r espect that agr eement

was diffi cul t to r eadh.

It is needlens t o say tha t during this war even the victor allied

~wers did not follcm these rule s of bombardment. Leoving aside the ca se

of bomba rdment by a tom bomb, even in using the ordinary bomb::;, the suggest<:ld

rul t: s of bombardmcmt ,-;e r e not a t all heeded to. I shall not reueat her e

~'lhnt i5 said in ,iustificE:.tion of the use of the a tom bomb.

It has been rightly pointed out by Mr. Ellery C. Stowell of the

editorial board of the •\merico.n Journal of Inte rnational law t hat t he atom

bomb has come "to force a more fundamentlll seprching of the natur e of war•

f a r e and t hG l egitima t e means f or the pursuit of militc.ry objectives" . He

then says, "In vi ew of the frightful efficiency of the bomb and the cnn­

ssqucnt indiscrimina t e dostru~"tion of civilian life and property, it has

~roused a oonsider o.ble popul ar opposition. At t he same time ~ur military

- 1, ~02 -

and govern!:lental authorities hc.ve given it t heir support on the gr ound thnt

it hast ens the defeat of the enemy with a consequent saving of lives of

allied soldiers •••• When the pros o.nd cons are summed up o.nd a ll the

e.rgurnents are heard, it v1.ill be found thet, pending a more per fect world

organization and union shown to be capable of preventing vm.rs, the 1 ~tws c (

war cannot rule out any m•3ans ef fective to secure the ends of war.

If Great Britain, Canada and the United St at e s <'an expect to keen the

t echnique of the a tom bomb secre t, it would hr:-t rdJ y be r easonA.ble to expe~t

them to foreg l) this ndvantage any more thnn it would be to ex"?ect them to

mnke oublic any othe r plan of mili tury defense and the militar y advr.mtage

derived from super-ior res(~arch or administra tive organiz.:ttion."

In thi s state of the aerir.l wnrf.;.re, j t is difficult to consider the

cor.duct of the J~p"'nese o.uthorit i es in mnkinp.; the r egulation for t he purpose

of tria l of the 'l i:r pilot s crimi nal on the ground that t he r egulation gave

~ oost f a cto l aw . In my opinion, they did not commit nny crime in making

these r egul a tions.

We should not f ail t o r emenber tha t the r eal horror of the air warfare

is not the possibility of o. few airmen being raptured o.nd ruthlessly killed ,

but the havoc which ca,.'1 be wrought by the indisr.riminn.te l aunching of bombs

and projectiles. The conscience of mankind r evol ts not so mur.h against the

ounishment met ed out to the ruthless bomber o.s against his ruthless form of

bombing.

As regards thE~ tri :1 a ccording to these r egula tions , I do not think

anything has been £' stllbli shed v;hich ~·,ould fix nny guilt on ~Y of the

- 1,?.03-

11r0used. Even if we judge by the standard ~iven by the rules suggested by

the Commission, t he re we:re bombardments in comple te disregard of them. At

any r~te, if the court m~rtia.l found that to be the fact and ar.r.ordingly

convi~ted the airmen of wnr crimes, I would not say tha t either the

oommnnder-in-chief or the members of the Cabinet or of the Gener al St aff

committed any rrime in not opposing thnt convi~tion.

As regnrds execution without trial, we may once again r ef er to

exhibits 1991 to 1993 wherein the a.Qthorities concerned expressly nnd

clearly emphasized trial by court mo.rtinl, end r.ertainly they cannot be

sdd to hc.ve ever ordered, nuthorized or permitted any of these illegal

things.

The alleged case s of execution of airmen \71 thout trial a.r e noticed

below with the evidence on which they are based. I would, ll t the very

outset, observe thnt the Prosecution evidence in support of this part of

the co.se is mostly worthless. We have been given extracts from v.rhat is

named as JAG Report, nnd have been told thr..t it is the report prepar ed by

a 1 Judge Advocatn Gener!tl 1 • A Judge Ji dvocate Gene ral is no doubt a

r e sponsible personage of' high position. But in the absence of the materi­

als on which it rnight bEJ based, I am not prepcred to accept it only on his

authority. If hi s con~lusions ;;o.re r eclly based on a ny r el evant rna t e rinls,

we ar e entitled ·to have these ma t e ricl s and to see for ourselve ::; whether

ne too can oome -~o the BEUile conclusion. Minds of' different men may differ

upon the r e sult of the E3Vidence t hus l ec.ding t o differ ent dodsions even on

the s.::une ~ause . We o.rG :, however, here on a cnuse differ ent from that

- 1,204 -

-

be f or e the Judge i:.dvo~nte General . In so f nr n.s his r.onr.lusions mi ght hnve

been based on no evidcnne or o~'l irrel evant evidence , these nr e v,oorthl ess

nnd must be r ejected.

Anothe r gr oup of evidence r elied on b:;r the prosecution in ~onnecti.on

v:i th this matt er is v1hat is described a s "Research Report c.bout the J ..1p: .~ -

e sc Viol a tions of the Laws of ''Tar" . I run not pr ep:1red t o oay aroy gr eater

r espc<"'t t o the ~onclusion of this r eporter whoever he be . The report may

evince a very high worth .'J.s r. oi ec e of r esec.rch . But in <.1 c- o.se ···her e the

life <:1nd liberty of so mc.ny persons a r e involved, I run not prepared to be

l ed by any sense of r e spect due to any r esearch '\'lork.

The ma jority of the evi dence is the st o.t ement of persons of unknown (..

r eli ability t aken out of c ourt without n.ny guc.r a ntee of trus tworth·.n ess .

Both the ability and r·lilingness of these persons to decl.:tre the truth

r ema in untest ed .

1. Bougainville : Exh . 1~75, R. .P. 14131 and 1877, R.P . 14133

Exh . 1875 i s n r e0or d of t he interrogntion of Capt a in WATJ.NABE ,

Knoru, and r.ia jor ITO, Tnichi, both of 17th Army Military Police

Unit . 'I'his interrogation wns mnde out of r.ourt obvi ously for use

a.t the t.rinl of t he se t ·"o men .

In tr.e course of the interrogation it wc s ndmittec th:1t two

P.me ri<'-:r. o.irmen who had come dovm in the sen be t ween T:1i of Island

and Port.on in Eougc.inville wo r e bohe:tde cl on order s of the M.P.

He.E'dqunrter s , 17th Ar my . Thi s happened in flee ember 1943 .

Exh . 1877 is o. stat eme nt t:~ken out of court of a Chine s e , Char

- 1,205 -

Chee by n~e , »ho s~ys thnt he wus r cptured by the J~panese ~t

~ongkong in December 1941 . P.is stc:t ement runs t hus : 11 In May

191 .. .3 , nE>·:r Bui n I SilW a white man dressed in overalls like n

pilot would wear. He v1a s u young mt:.n, The Japanese tied his

htJ.nds behind his beck, a nd made him sit on the gr ound. They pL t

a drum of boiling water beside him. About nine of them then

filed p~.st him and ench one emptied a tin of boiling wat er over

him. Tr.e man screcmed with pain. I saw him fall flat on the

ground znd lie still ~nd he s topped screaming . He appeared to

me to be dead . The Jap•-.nese were soldiers not offiners. The

white men was tall, of medium build, clean-shaven and f nir. The

overall s we r e khc.ki. I wc.s the only Chinese who wi tnc ssed this •11

This s t c.tement was -U. so taken for use nt the trial of the minor

wnr or imino.l s"

2. Ne\'1 Brit<'.in: Exh . 1866, R.P . 141'2 .3 and Ixh. 187.3, R.:?. 14129.

Exh. 1866 is a statement t aken out of court of a Cnptnin John

J . Murpty of -~lied Intelligen~e Bureau. The s t atement runs thus :

11Norman Vicker s of the Royal New '?.enland Air Force, was wit h us

as a pri soner of wcr off Tunnel Hill Roc.d , Rnbaul . He s t nted

that he was shct do~~ in the Bougainville- Shortlc.nds Area I

believe , Vfuen he arrived at the prison c~mp in ~nbaul he had

been cruelly ill-treated . He hnd been bound by r opes to which

fish hocks had been att ached in s uch c. way that whenever he moved

his head the fish hooks would pierce his f ace. Vicker s ' health

- 1,206 -

deterior~ted ~nd in July 1944, he died in my presence as a r esult

of mnlnutrition and dysentry."

Exh . 1873 is r. statement t aken out of court of one Havildnr

Changir::l.:.'ll of the India n Army. The statement stands thus: "On

t he l ? t h of :November 1944 I wrs digging a trench for J rl.pc.nese

trunks in Toto.b:il Area. . 1\.bout 1600 hours one single engined

Uni t ed States fighter plane made n forced l anding about 100 yards

away fro;n where I wes 'IOrldng. The Japane se belonging to Go

But:J.i !~ende bo Co.mp rus hed to the s :oot o.nd got hold of the pilot,

nged about 19 years, who had come out of machine himself before

the Japanese r ec.chod him . Gener c.l INAMORA also lived there in

the Jc.p~nese Ar1:1y H0nnqunrters. J~bout half o.n hour from tho time

of forced l .:mding, J o.pnnese Mili bry Policy, Kempei t a:l. , beheaded

the Alliad pilot . I so.w t his from behind u tree and noticed

Jo.pc.nese cut his flesh frcm r.rms, legs, ches t r.nd hips and l'la rried

the s~me t o their quc.rt e rs. I w2.s shoc ked o.t the s cene and follm''­

ed t he J 'lpo.nese just to find out v;hnt they do to the flesh. They

cut the f l e sh t o the amall pieces o.nd fried it. About 1eoo hours

a J~prmese high offic:Lo.l (Ma,ior-Generr.;J.) addressed about 1 '? 0

JapRnese, mostl;r offic~ers. At the conclusion of the speeoh a.

piece of the fri ed flesh was given to o.ll present, who ate i t on

the spot."

3. ~lew Guinea. : Exh . 1836-B, R. P . 14075; Exh. 1846, R. P. 14096 .

Exh. 1836·3 :ls an exC!erpt from n co.ptured diary nnd the r e cord

- 1, 207 ...

of a st at ement made by n Jnpcnes9 prisoner. The st at ement gives

an account how on ~9 March 1943 one of the t~o members of t he

crew of the Douglas, which had been shot down by A/ A on the 18th,

wns boheaded by unit commander I<OMAI. We wer e not given the

captured diary, The owner and unit of the author of the diary

is unkncwn. I hope it wa s v~itten in J apanese .

Exh. 1846 is a r ecord of the interrogation of Japanese Captain

ONO, Sntoru, of 53rd Field Anti-Aircraft Artillery Batt alion,

36th Division, Second Army. ONO, Satoru states that he applied

t o Yosl-J ino unit. commander for an .runericnn nrisoner of wo.r t o kill.

He was given two . He had them bayonetted with a shovel. This

was in 1944 . He did it beccuse he hcd a strong hostile f 0eling

on o.~co~nt of /~eri~ans 1 bombing his battery.

4. Ambon: Exh . 1830, R.P. 14063; Exh . 18~1, R. P. 14071.

Exh 1831 is the r ecord of interrogation of Warrant Officer

YOSHI ?;.AK I of t he Japanese ~avy. According to this statement on

the "<9U. August 1944, the deponent took pnrt in the beheading of

three .\mericCtll cirmen nt Sar n.r a Prisoner of War cronp. This was

done on orders of superior offi cers- The district had been

bombed by American planes on the pr evious day.

Exh . 1830 is a statement out of court of a Lt . Paul Alfred

Stansbury of the U.S. :~rmy Air Forr.e . The affiant, >7e ar e told,

"was a bombardier on a B- 24 which crashed over Kai Islands on

21 Sept ember 1943". The statement runs thus :

- 1,208 -

11The crew had sustained S(~rious injuries :tn the crn. sh A.nd t he

nc.vigator v1as pinned down on the flight deck. ! • . Jo.p::mese boat

0. nme out. The airmen with the ex~eption of the navigator were

taken prisoner s . The Japanese r efused to do anything for the

no.vig::tt or but 1 eft him ther e to die. The rest of the airmen "'or·c

t aken tc l1mbon. They were pl e.ced in mosquito infested cells

without blankets, bedrling or mosquito nets . No sunlight could

penetrate the c.ells nnd there was no ventilation . They V!er e

starved on weevily rice. No medical attent ion wc.s given them.

For 6e days they were interrogat ed to the ac~ompaniment of beat­

ings alrwst daily. Lat er the deponent o.nd the co•!)ilot v1ere

shipped t o J r>pan . They vJere frequently beaten hy t he guards .

They both ber.arne parnlyzed with beri-beri but r eceived no treat­

ment for this during the 60 days sea voyage . The deponent r e­

mained parn.lyzed f or nine months and tho co-pilot for 20 months ."

5. Cel ebes! Exhs, 1798 to 1803, R.P. 13846-65; Exh . 1810, R.P. 13920 .

Exh. 1798 relat es to two airmen captured on 3rd September 1944.

Exh . 1799 relat es to 8 airmen survivor of a plc.ne orush in t he

l atter part of Se~ternber 1944.

Exh. 1800 r el at es to 9 Girmen in October 1944, one in Jc.nuar y

1945 and two in February 1945.

Exh . 1801 r el r.t es t o 2n in~ident of ,Tu1y 1945 .

Exh. 1802 and 1803 r e1nt e to an exer.ution of f our airmen on

23 March 1945.

- 1,209 -

These ar e all interrogatories of minor war c-rimincls t aken at

the Priso:r1ers of Wn.r Cump, Celebes.

Exh . 1:310 is "evidence to.ken in Brisbo.ne on November 5, 1945,

Mr. Justice Mnnsfield 11 • The rel evant st!ltement is "Allied airmen

~aught vrere killed. I heard that all Allied airmen shot dovm or

landed in Menndo \'Jere 3.11 killed. The Tokki Td v7ere said to

h~ve killed them. ~~en I worked ~t the Tokki Tai building I s~w

three airmen - f1merir.r.ns , I believe. We s~w them in the gaol,

about June or July 1945; and I think they v~re exe~uted in Tondanot

Mr . Stelma was put in a gaol and bamboo splinters were put under

his nails. The Tokki Tui did this - YAMAGUCHI was the head of

them ."

6 . Batavia: R.P . 1'3601

The evidence relied on is the testimony of the Ringer. The

witness snys : "The Chief of the Jnpnnese r.oolios r eported t o us

that frorr the air raid of Jnnunry 25th two airmen hnd bailed out

of an airoraft over the l ·:!nding strip. One , \"ho l nnded on the

strip, w~s promptly beheaded; t he second man was hung up in a

tree and was bayoneted •• Again on the raid of the ~9th o+' January

1945, a burning nirnraft tried to nuke a forced l~nding on the

strip. Two a irmen got out of the plane but \':'er e thrown back into

flame s by the J apanese. After the surrender- - we had seen on

these two air raids seven uir1:1en \?ho had been exhibited in the

city of Pnlembang blindfolded -- we nsked the Kempei Tai what

- 1,210 -

had happened to these s even men. They d~!nied all kno\·!leoge .

However, we searched the ~pei Tai building a nd we found their

name s wr:ltten on the <}ell wall. They then admitted that t hese men

h<:l.d been sent t o Singapore. These men were executed in Singapore

in .June 1945. The Japanese responsible made f ul l confessions and

committed suici :ie. The case was known a s t Operation !fteridio.n 1 • "

7. Borneo : Exh. 1690, R. ? . 13500.

Exhibit 1690 purports to be n sta tement by the Japane se Warrant

Offi cer TSUDA. It st~tes tha t at Samarinda, East Borneo, in

February 1945, t hr ee American a irmen were beheaded.

8. Burma: Exh. 1574, R.P. 1~976

Exhibit 1574 is a statement t aken out of Gourt of an ~\nglo­

Burman Robert .Andr ew Hicol. He gave t he date of the occurrence a s

"7th eithe r Februe.ry or March 45, I can 't reme:nber- which" . The

name of t he o.irwan was given by this man as 'Stan Woodbridge of

Chingford, Essex , England 1 • vie do not ever kt:~O'N whethe r there was

r eal] y any such air me.n in the R.A .F . o.nd vJh.:;ther he is r eally dead .

The witness O.C(;f'rding to his own sta t ement W".s me r ely a t"} h.:::mce

witness. He stated : "Prior t o the occupation of Rangoon by the

Japanese forces, I was a permanent r esident at Rangoon but with

the approaching advent of the Japanese , I evacuated from Rangoon

in 20th February 1941 and I r emained a t Myaungmya till ~5th May

1945. On l¥ednesday, 7th either Febru2ry or Mo.rch 45, I can 't r e­

member which, o.t about 1000 hours a l orry stopped in front of my

- 1,211 ...

house in Mynungmyn, and BA HLAING, a young Burman nc~ompanied by

a Jap soldi er (three stars ) , ccme to my house a~d enquir ed if I

could speak English and Burmese fluently. When I told them I

ccul d, I was asked t o ace om puny them , 11 We are not told why the

party arre.nged the s~ene in that forest. Obvi ously the airmen

could not be questioned earlier f or ~ant o~competent interpre ter,

9. Hnnkow: Exh . 1891, R,P . 14162

Exh. 1891 is part 12 of the r eport of t he Central Investigation

Co'Tlmittee relat ing to Prisoner s of ~~iar, dated 4 r.!ovember 19/.~5 . :j:t

describes t he killing of three .Americnn airmen n t Hangkmv, China,

in Decem ber 19~~ . ThP r eport stat es:

"4 November 1945. IJ!c. jor General YJlBURAGI

"I. Circumstances of the in~ident.

111. Since around !~Utumn of J.cst year, the indiscriminate

shooting o.nd b ombing of the city of Hnnkow r.r.used considerable

d&~age to the homes of the citi7.ens . Not only that, but the

cnsuali ties infli~tcd upon the people, ~hi ,:; '" ·. y up'm the Chinese

forces , we.s p. r eo.t , [l.Dd the indignation OJ.~ ~ ! <P. cit.LZens gr~.dually

incrGascd .

11 2 . The Hankow Youth Organization (?) f or cr.d the American

fliers \.;ho participated in attacks against Hankow, t o march through

the ci t:r, r.s a reprisal f or the above- men tioned indiscriminate

bombing and shooting. The cit izens carried out bGatings and

viol ence against these fliers .

- 1,212 -

-

"I do not ht:'.:ve a de t ailed knov1l edge of the oe thods , means, and

degr ee of the a trocity .

"3. Befor e the above- mentioned incident was 11arried out,

application f or permissi on t o do so wc.s made to the 34th Ar my

Headquarters by the HD.nkow Youth Or ganization (?). However, the

Connande·c- of the Army (Lieutenant Gener al SANO) would not give

perr:1ission at first, because t he ill-treatment of pr isoner s of

wo.r is not only a violat ion of Internntionnl Law, but would also

have a be.n influence upon the tree.tment of Japanese nationals in­

t erned in t he Uni ted St a t es. However, the Youth Or ganization r e­

peatedly r equested the permission f or carrying it out, saying tha t

the pl an was a reprisal for the indiscr iminat e shooting and bomb­

ings and tha t it would be carried out under the r esponsibility of

t he Chir-ese people and t hat they will abso~utely refrain f rom

troubling the Japanese Forces . Consequentiy, the permission f on

the aforementioned wns gr anted . 11

10. The Phili ppines a t Cebu: Exh. 1461, R,P. ! .~ 77£.

Exh. 1461 i s described by the pro:::eeu.tl cn a s :ta summary of

evidence of J AG Report No . 72 on t he murder of two American cap­

tured fliers at Cebu c i t y in Mc.rch 1945".

The nxecution is said to have t cken place on '26 March 1945.

11. Singapo:re: Exh . 1511~, R,P. 12927.

Exh . 1514 is the statement taken out of court of Lt. Al exander

Gordon II'EYNTON of Austra.lio. . The rel evan t portion of the state-

-

mont stands thus:

110n 8th March 1944, I was shi?ped from Kuching to Singapore to

serve a sentence of 10 years imprisonment imposed on me by a

Jar.nnese Court on 29th February 1944. Nineteen other prisoners

who had been sentenced to imprisonment by the s~~e nourt acnom­

pa.nied me.

"On 11th Mnrch 1944, we were taken to Outram Road Goal . • • • •

"In December 1944, or January 1945, a B-29 which had been shot

down in raids over Singapore caught fire . Two members of the crew

were sev~rely burnt. They vl6re brought in to Outram Road Goal.

They were just one mass of burns and were black from head to foot,

They were placed in a cell but were not anc~.ved nny medical trea~.,.

ment.

"In June 1945, I snw a party of nine Allied airmen taken out

from their cell~; on v. Saturday afternoon. They were accompanied

by a heavily a.rmed guard and a Japanese bur·io.l po.rty . Some of

this party were J&}:nnese good ~ondur.t pri sc:1ers. Several days

later sone of them told me thr.t nine airmen had had their heads

t aken off a.nd that they had helped to bury them.

"In o.._l betwelen May and July 194?} I s nw 17 Allied airmen and

15 Chinese civilians taken out in SMlilar circumstannes f or ex­

ecution . The burial party returned but the priscners did not .

The burial party were in a dirty eondition, as though they had beer

digging when they returned. I had some contact with the airmen as

- 1,214 -

I was engq~ed in taking latrine cans to and .from their cells.

They told me that they had not been tried.

"I wa.s released when the Japanese surrendered :i.n August 1945 ·'~

It is difficult to guess why there was any talk about the trial

at all.

12. Japan Pr cper: Exhs. 1921 to 1924, R.P . 14204-18.

These exhibits a.re the different parts of the Report of the

Japanese Central Investigation Committee relating to the Prisoners

of 1.'/ar, dated 9 January 1946.

Exhibit 1921 is part 23 of this Report . The Report states:

"The treatfTlent of the airmen of the Allied Forces captured in

Eastern Region were divided into two catego~ies. First, if they

we!le suspected of violating military regulations, they were dis•

posed of by court-martial. Second, if they were acquitted, they

were interned in the POW oe..mps and treated as ordine.ry POW. How­

ever, before these steps were t aken they a t first wer e detained in

the guardhouse of thl'.l Eastern Military Poli~e Unit Headquarters as

suspected violators of military regula tions •• •• Du.cing the period

of detention there were 17 deaths."

The following incidents o.re ::tlso r e corded in this Report:

111. On the night of May 25; 1945, 62 Allied airmef1 \'lho we:re

internt;)d in the detention house of the Tokyo Army Prison as sus­

pected violators of the military r egulations were burned to death

in the air r aids.

.. 1,215 -

11 2 . A seriousl y injured nilot of a B-29 which fell in Eiyoshi

Village in Chiba Prefect"ure r eceived K3.ishnku, that is, he was

beheaded on f'!ay 26, 19f~5 , on the orders of the Japanese ~aptain

of the patr ol. The r eport adds t hat ther e is an indicaticn that

bayoneting of the b ody took pl ace afte r death .

113. From Februarv 11. 1945, when the Tokai (T .N. Eastern Sea)

rttni t ary Distrir.t was established until the time of t rur.e, the

number of survivi ng airmen of All ied pl anes who descended within

the District was 44. Of these , six men at the beginning were in­

t erned as prisoners of w.:1r since it was ~lear that they had attack­

ed military obj ects; and the el even men who later desoended on

May 14th v1ere sent to courts- mar tial ber.ause they had conducted

indiscriminate bombings and Vlere deeply suspected of being major

war criminals; 27 men who l ater descended after the latter part

of lvlay , \o,e r e disposed of by military regulations without formal

pr ocedures of the cour ts-martial due to the situation at that

time . It was decided that these men were clea rly guilty of in­

hmnan and indiseriminate bombings .

114. Ar ound f~ay of this year, the Headquarters of the 13th

Ar ea Ar my (oper ational a r my formed in con,iunction with the Head­

quarters of the Tokai tif:ilitary District, with most of the per­

sonnel holding ~oncur~ent positions in the Headqua rters of the

Military Distri~t) estimeted that the time of the landing on the

mainland by the Allied Forces woQld be a r ound August. At that

- 1, ns -

time, the whole Army was concentrating on the preparations for

the operation, end the work of the Headquarters was also extreme­

ly busy. By che.nce the headquarter~ received 11 men, airmen who

participated in the indiscriminate bombing of Nagoya on May 14th,

and discussions were going on about courts martial for them.

However, accompanying the air raids wh:i.ch were getting more

violent, the situation was such that the number of airmen was

~ncre.aeing i'u:rther . After the latter part of May, the enemy

bombings seemed to have shifted to inhuman and indiscriminate

bombing of cities, aiming mainly at destroying private houses

with incendiary bombs, and killing and wounding of citizens.

This was also clearly perceived through investigation of these

airmen.

"With the passing of time, the opera tionol work became busier

than ever. Vurlous situations had to be taken care of speedily,

and despi te the thorough efforts of the officials and the people,

the damages caused by the indiscriminate bombings became gigantic,

and the hostile feelings were reaching the limit. Meanwhile ,

under the severH and continuous air raids day after day, the

administration <>f these airmen was very difficult. In othP-r words,

the area army decided that under the circums tances, sending these

men to courts martial, which are complicated and delaying , would

not be consistent with the prevailing state of affc.irs. Conse­

quently, 11 men were executed in the mountains of Miyazu, Akazu-

- 1, 217 -

-

Cho, Seto City on June 28th, and 16 men were executed at the rear

of' No. ;~ office building of the Headquarters on July 14th."

Exhibit 192~~ is part 24 of the Report and is dated ~6 December 1945.

The Report states:

"Total number of the Allted Force Flight Personnel who were captured

·within the Central Military District by the Japanese Army was about forty"'

nine, of' whom th1:-ee were sent to 'l'okyo; about six died from injuries and

sickne ss; two weY.'e put to death after trial by court .. martial; and the

rest, of' about t~rty-eight, \vere put to death without being court­

martinled.

"The intensif'ica tic)n of air raids from June'· 1945 onwards, brought

about a gradual l.ncreasc3 also in the number of captured air flight per­

sonnel, but alth~ugh the Central District M.P. Unit, f ollowing thorough

inve~tjgat:l.ons on the strength of the aforementioned orders, secured

evidence of violation of. Martial Law in each of these cases , these flight

personnel nould not be brought before Court-Martial due to the lSth Area

Army Headquarters (an oper a tional unit incorporated into one body with

the Central Military District Headquarters, and the gr eat er part of whose

personnel were hQlding additional posts with the Military District Head­

quarters) being too bus:tly occupied in the preparation of' defense opera­

tions against the intensified a ir-raids and supposed landing of our mai~­

land by the u.s. f orces!, and on account of the Judicial Department, too,

being kept busy :ln d eal i ng v:i t h nase s of violation of mili tar.v discipline.

"At that t.:i.rne , the Centt'nl MHi tnry Dis+,rict Army o;:>i.nad tha.t the

- 1,218 -

intensification of air-ro.idB since the autumn of the year bef or e e es­

pecially the fact that many lives and ~onsid€r-:tble private property had

been destr oyed as a result of the indiscriminate incendiary bombings on

Tol0Jo, l'!agoya, Osaka and Kobe, etc., since March of this year, had I'ousec

the indignation of the nation - especially towards the flight personnel p

t o an exceedingly high pitch .

"fl.s, under the afore-r.~entioned circumstances, the Central District

M.P. Unit received no instructions from the Central Military District

He2dquarters, regarding the ~easures to be taken against the flight per­

sonnel, they <"!Onte..ct6d the Tokyo rn .P. Headquarters, and on the or.casion ~·

the first exeeution in the beginning of JuJ.y, same was carried out by als

contacting the Military District Headquarters."

Exhibit ~923 is part 27 of the Report and is dated ?7 March 1946.

The Report states:

"B. In regard to the public feeling against the captured airrrten.

"After the bombings of tfl.e Japanese Mainland were initiated , not onJ.

were fearful air raids against important facilities continued, but in

various places the losses in lives and properties of non- combatants star+

t o mount. Ac(!ompanying this, the hostile feelings of the peopl e began t c

increase . However, in March v1hen large cities such as Tokyo, Nagoya,

Osaka and Kobe began to suffer indiscriminate incendiary bombing raids,

and huge l osfles were suffered, the people 1 s feelings suddenly became vio­

l ent and their hostile f eelings inc:reased. The general public opinion

against the eaptured airmen hardened ~onspicuously. Later on , the indis·

- 1,<19 -

criminate bombings by JUlied aircraft be~rune increasingly and ceaselessly

violent and the people's spirit of vengeance reached its limit. The

situation .::rune to the point where even Japanese airmen who parachuted dowr1

were in danger of harm, because the people did not take time to make

distinctions.

11 0. Relationship between the Central District Military Poline Unit

Headqucrters and the Military Police Headquarters in regard to punishments

111. Accompanying the sharp increase in air raids against the main­

land in the spring and summer of 1945, the number of captured airmen in­

creased conside rably. However, for various r easons, every unit was unable

to speedily bring these men to courts martial. Because of this, the

Military Policy Unit in the various areas hcd difficulties in the intern­

ment of these men on account of the poor and ~rowded internment facilitie~

Around June of 1945, Lieutenant General OKIDO, Sanji , the Military Police

Commandant, after considering the general state of affairs, i ssued a

personal message using the nome of Colonel YAMMAURA, Yoshio, Chief of the

External Affairs Section of the Military Police Headquarters . The message

was issued to each Military Police Headquarters Commandant in the Nortberr

Northenstorn, Eastern, Tokai , Central , Chugoku, Shikoku, and the Western

District in regard to the handling of captured airmen .

"2. The gist of the said personc-.1 message , according to the memorie[

of those who were then connected with the l~1ilitary Police Headquarters, i ::­

generally as fellows:

"Courts me.rtial f or captured airmen are generally at a standstill.

- 1,220 -

-

Because of this, it seems that the interned personnel have increased and

the various Military Police Units are f eeling extreme difficulties in the

handling of these men. From the standpoint of the Mil itary Police, they

hope f or the ac~eleration of the courts martial. There are probably some

men among the p1~soners who carried out inhuman and indi~criminate bombin[

It is only right that these men be immediately punished severely aMordinr

t o mili tar;r regulations.

11If it is impossible t o make immediate dispositions by courts martial

perhaps other m•3thods may unmroidably be used. However , it is up to the

Military District Headqunrters to decide which of the two methods should

be adopted, a nd it is not a "lln.tter to be handled by the Military Police . ot­

Therefore, tt j s best to make contacts with the Chief of Staff ~the

Military Distrtct concerned, according to necessity. Moreover, it seems

that he added that this case should first have the independent decision of

the Chief of Staff of each t.!ili tary Di strict.

"3. i\.cc-o~ ing to Major-Gener al NAGATOMO, Tsuguo, Commandant of the

Mili t.::1ry Polic•a Unit Headquarters of the Central District, he was trying t

find a solution to the difficulties of the inte·rnment of the inoreased

number of captured airmen . Since he received the :lforementioned personal

message at this time , it seems that he int~rpreted the intention of the

message to me~n imJllediate punishment of the captured airmen and he order ed

his of J'icers to make prepar9. tions accordingly.

''u. ~elationsh:..p bet,Jccn the Military Police Unit Headquarters of 't!

Centrol District and the Centre~ fflilitary District Headquarters in regard

- 1,221 -

'-

to punishments.

"1. Ar ound the end of June (or the beginning of July), Major-General

i~AGATOMO, Commandant of the Military Police Unit of the Central District

who r eceived the said message, paid a visit t o Lieutenant General KUNITAKE

Michio, the Chief of Staff of the Central Military Distri·~t. NAGATOMO

made the f ollowing statement: ' As a result of investigating captured air­

men, we find that their statements are generally all alike. Therefore,

hereafter we will not submit every bit of information and we wish to take

the appropriate measures f or these airmen.'

"Lieutenant General KUHITAKE did not think that this negotiation was

something in connection with anything as important as the punishment of the

airmen, but he thought it was just u simple intelligence reuort. ThereforE

he answered , 1 I a~knowledge lt,' and turned his attention to extremely

pressing problems of operation preparations, and counter-measures against

air raids .

"According to Lieutenant General KUNITAKE, it seems that he never ever

dreamed that the purpose of Ma jor-General NAGATOMO 's visit was the contact

for the important matter based upon the personal message from the Military

Polir.e Unit Headquarters.

11 2. In t r.e early part of June (the exact dat e is not known) Major

SHI NAI, Ikomarc , of . the i~1ili tary Police Unit Headquarters of the Central

District visite-d Colonel OBA, Kojir o, a Staff Offiner of the Central Militn

District and said, ' Since v;e have had ~ontact from the Military Police Head

quarters, we will punj_sh the ~aptured airmen who ar e at present interned at

- 1,222 -

the i~ili t nry Police Unit of the Central Distri~t. 1

"Thereupon, Colone l OBL asked, 'Is it proved tha.t all of these co.pturec

air men actually cn.rried out intliscrimina.te bombings? ' It seems that Ma j or

SHINAI answer ed, 'Yes .'

"It appear s tha t Colonel OBJ\. thought that t hese punishments wer e

mattGr s c oncernir..g captured a irme n who were under the admini stration of the

Military Police f nit of the Central District and based upon the plans of

the highe r !,1ili t ar y ?alice Hec.dquarters to which the unit belonged . Ther e­

fore it seems th~~t he answered, 'It is inevitable , if they are to be 1>Unish·

ed by the Military Poliee Unit', thinking it wa.s unavoidable , s ince they

we r e to be punished in the light of military r egulations."

Exhibit 1924 is part 25 of the Report and is dated 23 January 1946 .

The Report stat e s:

"Of the Allied Air Force Flight Personnel captured by the Japanese ArJT'~

v1i thin the Wes t ern Mili tc.ry District, a bout eight we r e put t o death on the

20th of June , 1945 (Group 1), another, &ppr oxima t ely eight men , on the 12t h

of Augu st in tho same year (Group II), and Ell10the r, approximat ely fifteen

me n, on the 15th of the same month in the same year (Group III) , by per­

sonnel of the said Mili tar y District Headquarters."

The r eport further s t a t ns in paragraphs J, 4, and 5, commencing on pag

1 o.s follows:

"III. RE-3XECUTI O~~ OF GROUP I .

"As a result of various cities in the Mainland having suff ered one af t

ono~her from incendiary bombing by the Allied Force s ever since the end of

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-

1944 , the hostile feeling of the nilitary end government authorities , as

well as the people, be~ame steadil y aggr avated; especially upon Fukuoka Cit y,

the seat of the m litary Distrint Headquarte rs, being air-raided on the 19tt

of ,Tune, 1945, which r esulted in the principal parts of t he City being r e•

duced to ashes, and presenting the tragic sight of l arge numbers of the

general populace being made victims, whereupon the hostile f eeling appears

to have become st:lll further intensified .

"It was under t he c:lrcums·tances as per the foregoing paragraph that

about eight of the captu~ed Flight Personnel vre r e e xecuted by personnel of

the Military Di strin t Headquarters '.'lit hin its compound on the 20th of June.

"IV. RE-EXECUTIO~T OF GROUP II.

"On en t ering into August, successive a t omic bomb raids wer e made by the

U.S . Army on the ~ities of Hiroshima and Nagasaki, victimizing the majority

of the citizens of both cities , and upon it becoming knovm that the miser­

able plight of the said vi~tims wa.s absolutely beyond words, the general

feeling of ani mosity ap1~ars to have soared up t o its zenith again.

"It was under the drcum:;tan0es a s per the fo r egoing paragraph that

about ei !1ht captured Fl ight Personnel \7ere executed by personnel of the

Military Di strict Headquarter s in a hill near the Aburayama Crematorium in

the southwest part of Flimoka City , on the 12th of August.

"V. RE-EXE.CUTION OF GRCUP III .

"Upon the v1ar coming t o an end on August 15th, various wild rumor s be­

came ci rcula t ed throughout Kyushu District, and Fukuoka Di strict especially

was thr ovm into an indescribable stat e of c onfusion due to the weake r sex

- 1 , 224 -

fl eeing to places of refuge, etc., due to the fabricated report that a par~

of the ;lllied Forces had already landed, etc ., :md these factors appear to

have aroused a sense of intense enmity among a section of the officers of

the l!ilitary District He~dquarters.

"It was under the circumstances as per the foregoing par agr aPh that

about fifteen captured F'light Personnel were executed bv personnel of the

Military Distric·':. Headquarters in a hill hear the Aburayama Crematorium in

the southwestern part of Fukuoka City, on the 15th of August."

I have alreadY indicated my difficulty in accepting the account in its

entirety. But even if I could accept it, it would not establish any guilt

of any of the present accus6d.

The cases of exer.ution without trial are really all stray cases at

different theatElrs of war far away from Japan.

In Japan pJ•oper there are several cases, all occurring in 1945 when

everything we.s :.n a chaotic condition here.

The cnly accused who vould be concerned with these incidents in Japan

a t that ti~e Yiould be KOI SO, SHIGEMITSU and TOOO. We must remember that

\ . the TOJO Cabinet fell by the 22nd July 1944. Between 22nd J uly 1944 and 7t

April 1945 it was the KOISO Cabinet which was functioning , and of the

accu~ed, only KOISO ar.d SHIGEMITSU were there. From the 7th April 191~5

til, the 17th August 1945 the SUZUKI Cabinet funnt ioned, and only TOGO of

the aoi"Used persons was in t.hat C11binet .

In any case , in view of the conditions of Japan at that time, I would

not hold them criminally r esponsible for failinp to prevent these unfortunr

executions . Every fai lure does not imply f ault •

.. 1,225 -

I '

Pl~R:r VII

R.ECO~:iMEl\i'DATION

For the ro~sons gi VEm i n t h o f or egoing page s, I v10uld hold that each

a nd e veryone of t he n r.c used MUst be f ound not guilty of each and every one

of the ch~rge s in the indictment and s hould be acquitted of all those

chc.r gos.

I have not c:on:::lidcr ed whether or not r.ny of the wars ngainst any of

the nations covered by t ho i nd ictment rm.s aggr essive . The view of l aw

tha t I t c.ke c.s t o t he criminality or other wi se of o.ny war ma ke s it un­

necessary f or me t o enter i nto this question. Further, I have indica t ed

the difficulty t hat I f eel in defining ' aggr e s sive war', keeping i n view

t he generally prevalent beho."t'iour or the powers in intern.. .... tional life .

Ther e is i ndeed one pos s ible o.ppr or.ch t o the c c:.se , vJhic.h I have , as

yet, l eft unexpl or ed. It is said t hr.t tht. victor nc tions, as military

,occupants of Japan, can t a ke action under Article 4.3 of the Hague Conven­

t ion IV 0f 190? in or der t o ' e ns ure public order :md s ::tfet y r a.nd that t his

power entitle s them t o def i ne the circumstance s in which they would procee

t o t ake such act ion ;:nd the nct i on 1.1hich they would c onside r r equisit e f or

the purpose •

Ref er ence i s mnde t o the ca.se of ~~apoleon Bonapc.rte and thence t o

Article 4.3 of the Hc.gue Convention of 1907, and i t i s contended th~t t he

vict or power s would h2.ve ever y r ight, f or the so.ke of e nsuring public ordL

m1d S£'.fety of t he '.Vorld , t o r cnove any of the ~ccuscd from a ny sphere of

life wher e ther e would be 'lny possibilit;>r of his doing any future mis chi ef

I believe t hi s i s r colly o.n cppccl t.o t he political pO\'Jcr of t he

vict or nations with 11 pr et ens0 of l egal j u stice , I t only t.mounts t o

- 1,226 ..

"piecing up vm.nt of legalit y with nc.tter of c-onvenience 11 •

I have already notif'~ed the cnse of ~1apoleon Bonaparte e.nd have pointed

<'Ut how, even in those da.ys, a good deal of difficulty was felt and doubts

entertained as to the exa.ct lege.l position arising in his case . Th0se ~.,- o

took the final step of detention of Napoleon realized that it was necess~~~

for them to equip thernsel ves with some authority for this ;.1urpose ft>om their

national l egislature. 56 George III chapters 22 and 2.3 were enacted to

furnish this authority.

At the Congress of i\.ix-la-Chapelle 1818, the Allied Powers, in their

measures against "1apolenn, i)roceeded on the assumption that the c a se W!'l.S

not ~overed by international lGw, and they gave their reasons for saying

so . I do not see what productive principle we can derive from his case for

the purposes of international lnw. The case only yields a p~rticulo.r rule

having n very narrow Siibere of c.ttraction and, in my opinion, a strictly

limited field of projection. We may no doubt sometimes apply even such a

rule beyond the field ccvered by its original logical content. But such a

projection must not be allowed t o take it to a fi•3ld essentially and funda­

mentally different from its fieln of origin. I do not know the posi tion

of the Fitler group. Perhaps it might have been possible to liken their

case to the case of Na;>oleon.

The Allied l'owers thought that they were justified by the law of

n::1tions in using force t o prevent Bonaparte from usurping the governorship

of France, c.nd thnt with this justific9.tion they me.de wnr .HJ2on_J;im and his

a.~rent~ !\S x.ner~es to Jill.~ ... f!:Jj~~ when Fr:;1.ng:;, v1as !1Qc4ne.!R¥ to thorn.

- 1,227 ..

-

Bonaparte was designated as merely 11the chief of a shapeless force ~~

~~ized politi~cha~H2iii", and, consequently, without any right to

claim the advantages and the courtesies due public power by civilized

nations. That might have been the position of the Hitler group also, if

that group stifled altogether the German constitutional life, and usurpo~

power in the manner in which, and, to the extent to which, it is brought

out in evidence in that case. In either case perhaps, the so-called state,

if it could be called a state at all, succeeded in withdrawing from the

influence of the social tendency and pl~cing itself consciously into

opposition to the society concerned,

The case of the present accused before us cannot in any way be

likened to the case either of Napoleon or of Hitler. The constitution of

Japan was fully working. The Sovereign, the Army and the civil officials

all remained connected. a.s usual and in normal ways with the society. The

constitution of the State remained fashioned as before in relation to the

will of the society. The public opinion was in full vigor. The society

was not in the lElast deprived of any of its means to make its will effective·.

These accused c~1e into power constitutionally and only to work the

machinery provided by the constitution. They remained all along amenable

to public opiniou, and e1ven during war, the public opinion truly and

vigorously functioned. The we.r that took place in the Pacific was cer­

tainly war with Japan. These persons did not usurp any power, and certain­

ly they were only working the machinery of the internationally recognized

state of Japan aH parts of the Japanese force which was at war with the

Allied Powers •

.. 1,228 -

An appeal t o Article 43 of the Hague Convention IV of 1907 may i11deed

look like seeking a pretext for the triol of the se persons . We are t old

that the starting point for a discussion of the punishment of war criminQlS

must be the Hague Convention IV of 18 October 1907. This convention, it

is said, is essen·tially the handiwork of modern European scholarship an<l

as such essential1y reflects the tradition of modern Roman law and of

modern Romanist codification. \~!e are then told that it will be distorted

or misunderstood, if it :ls conceived of exclusively in accordance ,;·Ji th

- Anglo ... America.n conceptions of _egnl or juridical method , and if it is con-

ceived of without recognizing rnodern juristic theories concerning the role --of purpose in lav1, It w:Lll be ineffectual and distorted if it is not

interpreted and aiministered in accordance with Romanist conceptions r e·

lating to juridical method, as well as in a.c.oordance with the purposes or

goals stated in the very t ext of the convention itself.

The "purposes or goals" said to be "stated in the very t ext of the Con-

vention itself" are referred t o in order t o bring within Article 43 the

right and power of the victors to make law declaring aggressive war a crime

and a crime for individuals . I believe "the purposes and goals" of the

convention would not take us to the determination of the character of the

war itself. The vJhole purpose was t o give the laws and customs of war,

assuming the pre-existence of the war condition.

The Covenanting Powers, "Seeing that, while seeking rneuns to preserve

peace and prevent armed conflicts bet ween nations, it is likewise necessary

to bear in mind the case uher c the appeal to arms has been bropght about

- 1,229 -

by events which thGir nare was unable to uvert;

"Animated by the desire t o serve, even in this extreme c~, the ===-interests of hwnanity and the ever progre ssive needs of civilization;

"Thinking it important, ~~his object, to revise the general l aws

and customs of war, either with a view to defining them with greater =

precision or to confining them with such limits as would mitiga te their

severity as far a~: possible;

"Have deemed it necessary to complete and explain in certain particu-

lars the r..;ork of the First Peace Conference, \'lhich, follovting on the

Brussels Conference of 1874, and inspired by the ideas dictated by a wise

and generous forethought,~ adopted provisions intended to define 0nd govern

the usages of war on land,'" m

While so doing, the;r gave certain rules relating to "military author-

ity over the terr:ltory of the hostile state" in Section III of the Annex

to the Covenant, ond Article 43 found a place in that section. The

Article stands thus: "The e.uthority of the legi tima.te power having in fact

passed into the hands of the occupant, the latter sha.ll take all the

measures in his po~er to restore, and ensure, as far as possible , public

order and safety, while respecting, unless absolutely prevented, the laws

in force in the country." Its provisions would apply when a territory is

occupied during belligerency by a. hostile army. If th0 construction sought

to be put on Article 43 be correct, ti1cn a.n army, in such occupation of a.

territory during ua.r, wculd be entitled to declare the wa.r conducted by the

government of the.t t erritory a.s aggressive a.nd 9riminal, and, if it succeeds

- 1,230 -

...

•

in getting hold of r.ny personnel of that government, would be r.ompetent to

create a charter defining la~ f or the trial of that personnel and get them

tried and convicted . I shall not, for a moment, think that that was "the

purpose and goal. 11 of the Powers who convenanted themselves into the Hague

Convention of 1907.

I am not prepared to strain and tvdst Article 43 of the Hague Conven­

tion to cull any such purpose and goal out of it. I am not n1 so prepared

to project the l'iapoleon case t o the present. I have already pointed out,

how, even after this we.r, the charter of the United Nations, which was pro-

mulgated by the peoples of the United Nations avowedly " to save succeeding

generations from the scourge of war" and expr essly announced "the purposes

of the United Nations" to be 11 ·1io maintain international peace and security

and to that end; to t~Ke.corrective measures for the prevention and re­

moval of threats to the peace, and for the suppression of acts of aggression

or other breaches of the peace • • .", did not introduce any such measure

o.gfdnst the indiv·iduo.l members of any offending state.

Chapter VII of tha't. Charter ;>rovides for "action with respect to

three.ts t o the pElace, breaches of the peace, and acts of aggression" . The

provisions of th:.s chapter do not contempl~te any steps against indi vid-

uals. It may safely be asserted that the coercive actions envisaged by

chapter VII would not bo invoked individually against those who might be

responsible for the functioning of the offending collective entity.

As a judicial tribunal~ we canna~ behave in any manner which may

justify the feeling that the setting up of the tribunal was only for the

- 1,231 -

attainment of an objectiv·e rihich wo.s essentially political, though cloaked

by a juridical appearcnco.

It has been ao.id thnt a victor can dispense to the vanquished every­

thing from mercy to vindictiveness; but the one thing the victor cannot

give t o the vanquished is justice. At l east, if u tribunal be r ooted in

politics as opposed to la~, no matter what its form and pretenses, the

apprehension thus expressed \"Jould be rec.l, unless "justice is r eally not hing

else than the interest o:r the s trongertt •

Hod ue boen openly called upon to deeide such political issues, the

entire proceedings would have assumed a different appearance altoge ther,

and the scope of our enquiry would hove been much wider than what we

allowed it to assume. The post conduct of the persons under triL'~ in such

a case would hove simply furnished some evidentiary f acts; the real ulti­

nate probandum would have been the future threa t t o the 'public order and

safety' of the world. There is absolutely no mat erial before us to judge

of any such futur9 menace. Thc3 parties we r e never called upon to adduce

any evidence in t his r espect. The matter would cer tainly involve extensive

investigation of facts p13rhaps hitherto undisclosed t o the world. When the

Nazi aggressors ar e all eliminated and the Japanese conspirators are well

secure in prison, we are still authoritatively told that "never before in

history has the world situation been more threatening t o our ideals and

inter ests". So, it may be that the world's attention has not yet been

directed in the right direction. "The depressing aspect of the situation",

the world is t old, "is the duplication of the high handed, calculnted

procedure of the Nazi r egimo 11 • This may be SOJ or it mcy also be that we

- 1,.232 -

-

are only being betrayed by whc.t is false VJithin, - the incipient failure

of will and wisdom.

It i s indeed a comrn.on experience that, in times of trial and stress

like those the i nt ernational world is now passing through, it is easy

enough t o mislead the people 's mind by pointing to false causes as the

fountains of all ills and thus persuading it t o attribute all the ills

t o such cause s. For those 11ho uant thus to control the popular mind, these

are the oppor~une time s; no other moment is more propitious for whispering

into the popular ear the means of r evenge while giving it the outward

shape of the only solution demanded by the nature of the evils. A

judicial tribunal, at any rate, should not contribute to such a delusion.

Tho name of Justice shculd not be allowed t o be invoked only for the

prolongation of the purrn::lt of vindictive r etaliation. The world is r eally

in need of gener ous magnanimity and understanding charity. The real

question arising :tn a ge:nuincly anxious mind is, "can mankind gr ow up

quickly enough t o win th•e race bctv1een civilization and disaster".

It is very t:rue that 11we must change our accustomed way of t hinking

f ar more r 4pidly than we have ever hod t o ohange them before. We must

begin systematically to reduce and eliminate all chief cc\uses of war."

Such causes do not lie in the Har potentialities of a nation' s industries.

To look at the pr oblem thus is only t o visualize our pr esent dey problems ·

as mere r eproductions of old ones. We must not f o.il t o r ealize that 11 they

nr e in principle u new kind of problem, They ar e not mer ely national pr o­

blems wi th world :.nplicati ons . They are indisputably world probl ems and

- 1,233 ..

-

humo.ni ty problems." We must cease t o "gr appl e ''i th these t r emendous

r.w.tt ers vd th the t hought t hat t hey ar e onl y mor e complex r epr oducti ons of

pr oblems which ho.ve plagued us s ince 1914."

Le t not "the implication of at cmic explosi on'' f ail to "spur men of

judgment ••• t o seek a met hod whereby the peopl es of the ec.rth cnn l ive

in pence and justice ." But the course of action signified in the trial

nnd punishment of the l enders of a def eat ed nation does not indicate much

appr eciation of this implication. Perhaps it has been truly said tha t "the

turbulent emotions ar oused by watching trials of hated enemy l enders • e

will l eave little r oom for consider ation of the fundamentals of world

union ••• " "Public understanding of the r eal condition of peace would not

be increased, but r o.ther confused, by all the emphasis upon one d.et o.il, the

trials. • 11

The trials should not be allowed t o use up the pr ecious little thought

that a peace-bound public may feel inclined t o spare in or der t o find the

way t o "conquer the doubts and the f enrs, t he ignor ance and t he gr eed,

which made this horror possible". "The vindictive and or atorial pleas of

the prosecutors in the lnnguage of emotionalized generalities did enter•

t ain r n ther than educn t e • 11 We may not aJ. t ogether i gnore the possibility

thn t perhnps tha r esponsibility did not lie only with the defeat ed l enders.

Perhaps the gui lt of the l eaders v~s only their misconception, pr obably

f oundud on illusi ons. It may indeed be that such ilJ.usions wer e only

egocentric. Yet. we carmot overlook the f act t hat even as such egocentric

i llusi ons, these ar e ingrnined in human minds everywher e . It is very likely

that:

- 1,234 -

"When time shall have softened passion and prejudice, when ~~2.!!

shall have stripped the mask from misrepresentation, then justice, holding

evenly her scales, will require much of past censure and praise to change

places."

- 1, 235 -