Brock Simpson
HGPS 201
Mr. Xabier Irujo
29 November 2017
The International Military Tribunal for the Far East
Humans are the most destructive creatures on this earth. Humans are very self-interested and some will do anything to get what they want. We do many things that we shouldn’t, whether it be destroying the planet we call earth, abusing and using animals how we want, or even committing atrocities against our own kind. Among the worst of theses atrocities is genocide. Webster’s dictionary defines genocide as, “the deliberate and systematic destruction of a racial, political, or cultural group”. It’s tragic that humans can do this to other humans. Taking away all their rights, torturing them, and even killing them. This has happened for so long and we still haven’t learned from our mistakes. You would hope that at some point we could change and not to hurt and take advantage of people. That is why we need to learn from our mistakes. This is why we should look at comes after genocide. We need to look at the trials that come after and what the opposing power does after the end. This will help us understand how to combat genocide and move past it in the future. I wanted to learn more about a genocide we didn’t study so I studied the International Military Tribunal for the Far East.
The agents of Genocide come in all nationalities, and committed these crimes for many different reasons. Perhaps the only good thing about genocide, is the end of it. Still, the question remains what to do with the suspects of these crimes. The only possible solution is to try to bring them to justice in a court of law. This was the idea behind the international military tribunal of the Far East (IMTFE). This is the lessor known of the genocidal trials that followed the end of the Second World War. The tribunal came from a 1946 proclamation by General Douglas MacArthur. General MacArthur was the supreme allied commander in the occupied eastern territories after the war. The goal of these trials was to try and punish Japanese criminals for their genocidal roles in the pacific campaign (history. State). This tribunal, like the Nuremburg trials, were some of the first of its kind to exist, and since this is pre 1948 convention, no official crime of Genocide has been declared (treaties). This was truly the first of its kind to exist to try people of their international crimes. Hailed as a progressive step forward, this tribunal had its fair share of problems. Many point out the lack evidence, and the fact that the defendants may not have gotten a fair trial. Even to this day the tribunal can still be considered controversial in the eyes of the international committee (Pacific Encyclopedia). Although this was a sign of progress and the IMTFE has some strengths to it, it was incredibly hard to prosecute the defendants, as the charges were too broad as well as the evidence. This trial can even be considered an example of Victors Justice, and an example of humanities faulty ability to control international actions and bring agents of genocide to true justice in a fair and equal court of law.
Focusing on the trial itself, we can see multiple problems with the way the courts were run and the evidence brought against the defendants. Evidence is the crucial and most fundamental part of any trial, and most nations have mutually agreed that evidence in court needs to be substantial in order to get a conviction. This was not the case in the tribunal. Multiple problems with evidence and tampering thereof have been discovered including the flat destruction of evidence itself. Near the end of war the allied forces did not immediately occupy the island of Japan, which gave the Japanese military plenty of time to destroy as much evidence as possible: which it promptly did. After the surrender broadcast the military: “Had time to destroy most of their incriminating records” (Pacific Encyclopedia). This resulted in a mass amount of evidence lost. Papers, plans, documents, and top secret material was not able to be presented in court giving the defendants a better chance at an acquittal. Even with such a mass amount of evidence missing, the defendants were all found guilty on some level. Although it was common knowledge that such autocracies were committed that cannot be held in a court of law.
This lack of evidence, along with the idea of ex-post facto laws lead to a dissenting opinion from Justice Radhabinod Pal. In his dissenting opinion he writes that: “I would hold that each and every one of the accused must be found not guilty of each and every one of the charges in the indictment and should be acquitted of all those charges” (Justice Pal, NY Times). Although he was the only dissenting judge in the tribunal, his dissenting opinion casts doubt on the trial’s authenticity. His opinion is often regarded as bold and courageous by the Japanese people, and he is still honored even today. Pal was also regarded as having a stronger background in Asian culture that the other judges (New York Times). Because of such a moving dissent and the fact that the evidence can be considered controversial, the trial in a small sense violated the world principal of common law.
The only thing keeping us from chaos for all human beings is the law. The law may not make things fair especially for the victims, but it is the only thing that keeps the honor and treatment of a human being intact. This was a disregard for that fundamental principal and is an example of how quickly the court was able to overlook such principals in order to give into popular demand and render a guilty verdict. Although they were guilty of the crime of Genocide and crimes against war and peace that was rendered without the use of hard, historical, and physical evidence which is a serious error on the part of the allies to maintain equal justice for all, even the enemy.
Without a lot of hard evidence to go on, the courts had to rely on eyewitness accounts and testimonies from the actual victims of the Japanese war machine. This could be considered incredibly good evidence against Japan, but there were also problems with the eyewitness testimonies as well. Tokyo was far away and also more isolated than the European cities. It was harder to get eye witness accounts that would testify against them, including freed prisoners of war (Pacific Encyclopedia). This was an extremely important part of the trial because statements from those people effected are incredible pieces of evidence, yet they also can be challenged by the defense in order to have a fair trial. Without plentiful sources of testimony from multiple people, the prosecution relied on affidavits or sworn statements of detailed accounts of the injustices committed by the Japanese during the war (Pacific Encyclopedia). While these proved to be very effective for the offense, these were incredibly difficult to challenge from the defense giving the prosecution an unfair advantage in the proceedings. While there is no doubt that these stories were true, the goal of a trial is to be fair to everyone and this was not done here. It placed the defense in a position where they could not dispute the claim, ask counter questions, or verify the authenticity of the statement. It became very hard for the defense to come up with an actual defense without the person in the room to cross-examine.
These controversial affidavits held up and were a factor in the eventual conviction of the accused. While these worked in the Tokyo proceedings, if used in another court they would not have held up on account of how hard it is to cross examine them. In an American court, or even a British court these statements would have been discarded (Pacific Encyclopedia). Because they were accepted here, it shows the court’s desire to close the case and render a verdict as soon as possible. Instead of taking the extra time to actually bring in case witnesses and real people, they had short cuts in order to proceed faster and more smoothly for the offense. This by every definition is a textbook injustice towards the defense. It clearly gave them an unfair defense and not a chance to create their own account of what happened. In all fairness the accounts used were most likely true, but the point of an international tribunal and trial is to still give a clear and equal defense for the accused. An equal defense is the only way that we can rest our heads at night knowing that true justice has been achieved. Even though a guilty verdict might be rendered it is the job of the victorious to be fair, not to be quick. These types of testimony and the fact they would not be held up in other courts is why many scholars today still regard these trials as a victor’s justice trial.
With most of the evidence flawed in some way there is not much of an effective court. Perhaps it goes deeper than just a little controversial evidence though. When looking at all the proceedings as a whole, we can see even bigger flaws that might have made a trial impossible. Alongside evidence the law is the most fundamental thing needed for a court. The law is what produces evidence, and evidence produces justice. In law itself there is an incredibly important statue called the ex-post-facto law. These such laws would, “retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed” (legal dictionary). This means that you would be able to charge a person with a crime when there was no law against it at the time of the act. This idea is forbidden in the United States by the constitution and is also prohibited in international law. The only way you could charge someone with a crime is if it was against the law when the act was committed. At the time, these were the first kind of international trials and there was no international laws governing crimes against humanity or crimes against peace (Takeshi, Asia Pacific Journal). No committee or nation had defined or placed forth an international law regarding specific crimes against humanity, or even crimes against peace. This by legal definition would make the Class A and Class C crimes the men were charged for possible ex-post facto laws and therefore admissible in court. This idea of ex post facto charges being brought against these men is a serious issue. The idea that ex-post facto laws should be banned has been around well before these trials and even the Second World War. The fact that this was not taken into consideration shows incredible disregard for the idea of law. It instead shows an attempt to punish people in whatever way possible, even if it is at the expense of one of the most fundamental ideas in the practice of law. By the definition of an ex-post-facto law and the fact that there was such weak international laws the charges brought against them should have been either dropped or revised by the international community on account of a technicality. This idea is hard to accept, because all anybody wanted to do was to bring people to justice. To bring people to justice in an illegal way though is not right and not the way we as humans should conduct ourselves. Especially when the sentencing involved the factors that it did.
Sentencing for these trials went all the way up death. A death sentence even for these men should be taken with the upmost seriousness. People’s lives hung in the balance and it was up to a small number of people to determine the fate of another. In this particular trial, 7 people were sentenced to death having been found guilty on all charges (law2). The people sentenced to death included General Tajo who was the former primer of Japan and Matsui who was the military official responsible for organizing the rape of Nanking (Histroy.com). With some of these charges possibly being ex-post facto charges we can today even contemplate whether their deaths were justified. In the eyes of thousands of people their deaths were justified on personal and national levels. On a legal and professional level though, these deaths can not only be considered controversial but illegal since the charge used to convict them was illegal. This now extends beyond lack of effort for proper procedure and now extends into lack of consideration for the accused. Were their deaths justified for their crimes, absolutely but in a legal sense, belief can only get you so far, and this was a time in which it went way beyond its bounds without consideration to what might be right in an international court of law.
The ex-post facto law is also a main reason why Justice Pal became a dissenting judge in the case. He saw these charges from another angle than most, and placed more regard for what would be official procedure in a court rather than the popular demand of a guilty verdict. Pal would continue to say that, “the victors had the right to set up a special court, and therefore the establishment of a charter itself was not problematic; however, the victors had no right to legislate the creation of new crimes in international law” (Takeshi, Asia Pacific Journal). It is important to note that Justice Pal agreed with the tribunal as a whole and did think it was right for justice, but questioned the tactics that were used in the tribunal itself in order to convict people to imprisonment for even the death penalty. Using ex post facto laws, most of the defendants were sent to life in prison which itself is a very serious charge. A whole life spent behind bars based on an illegal charge and therefore an illegal sentence.
When continuing to look at the charges we can also find fundamental reasons why this was not an adequate form of justice for the defense in the charges. Three broad charges were brought in the IMTFE. The broad categories included class A: crimes which were against peace, class B crimes: war crimes, and class C crimes: which were crimes against humanity (Virginia Law). While these were indeed charges, they were incredibly broad and did not provide the defense or the prosecution for that matter any specific or pin point charges needed for a conviction. All of these charges had definitions to them. Yet they were so broad and undefined that it was hard to argue for them on any side for that matter. No official crime of Genocide was written at the time, so therefore they could not be charged for the multiple accounts of genocidal acts during a time of war. This does not represent a fair charge for the action committed. How could these men be tired for a specific crime, in which there is no official definition for? Instead these men were brought to justice in a broad sense, which negates the authenticity of the trial.
The inner components of the trial were cases of mishaps on behalf of the creators, and overseers of the tribunal. Faulty evidence and controversial laws were used in order to try and bring justice to over 25 high-ranking officials of the Japanese military (pbs.org). When looking at the defendants on trial, we see many ranks and positions in the military and government. These include former War Ministers: Araki, Hata, Itagaki, and Minami. Former Navy Ministers; Nagano, and Shimada and over five military generals. These were some of the top ranking military members in the entire nation. One name does not stand out on this list of accused. He is perhaps the most responsible for all the crimes committed by Japan during the war. The person is the emperor himself. Emperor Hirohito was the reigning emperor of Japan during and following the war. He was the head of state and the head of the military during the invasions and subsequent genocidal actions during the war. History has long debated his actual role in the war itself and, “Hirohito later portrayed himself as a virtually powerless constitutional monarch, many scholars have come to believe he played an active role in the war effort” (History.com). As the head of the State and the face of the nation during these war times, he in some way should be held responsible. Yet his name never appeared on the tribunal and to this day neither he nor any of the imperial family has ever been charged.
As many people thought the emperor should have been charged, more are left asking why he or any of the imperial family did not get charged with any of the crimes that his military subordinates were. Not only was he not charged, but he was also able to keep his place on the throne as head of State and emperor of Japan for decades after the war (Histroy.com). This research was conducted by Professor Herbert P. Bix who points out the fact that: “Imperial General Headquarters was established inside the Imperial Palace to facilitate Hirohito exercising his constitutional role as supreme commander of Japan's military. Through Imperial General Headquarters, Hirohito was able to participate directly in the planning of Japan's military aggression and guide its progress” (Bix, Pacific War.org). With the military evidence clear and the fact that he was the head of State, head of public relations, and constitutionally the head of the military, guilt should have befallen him as much as the people who carried out the aggressive and inhumane military tactics from 1931 to 1945 (Pacific War.org). While he walked free dozens were punished for the role he directly played in this war.
Reasons vary for why the Emperor was never charged or even recognized for his active role played in the war. Not only was he never charged, but also in the years following the war and leading into modern political times he is seen as a figurehead who really had no control of the situation (History.com). While this is seen by many historians as false, the reason why he was never charged also remains controversial. After Japan’s surrender, President Truman and General MacArthur wanted the occupation and political reforms to go as smoothly as possible. They believed this would only be possible if the people saw their emperor cooperating with and encouraging occupation reforms within his own government. Both General MacArthur and President Truman agreed that their occupation of the nation would go very poorly if they charged the peoples’ beloved Emperor (Pacific War.org). This was contrary to other governments like Australia who felt that sine the Emperor’s role was so big, he needed to be charged. This idea of amnesty for the preservation of an occupation is progressive but was it right for the victims of the Emperors reign of terror over neighboring countries?
The guilt and aftermath of any incident is almost always seen differently by the world than the victims. Victims are bent on justice-as they should be-while the world wants justice, but needs to think about the good and fair treatment of all. The world also needs to think about the preservation of peace. These ideals were why Emperor Hirohito was not charged. He was seen more important in keeping the peace, rather than being brought to justice. This idea is split down the middle and can be considered an incredible moral gray area.
On one hand justice is the idea that every man should be held responsible for the crimes he committed, no matter the power or importance of that person. The philosophical saying that nobody is above the law is something that was been practiced by the United Sates and the world as a whole. By this common value, Emperor Hirohito should have been charged with the rest of them. The fact that he wasn’t shows a disrespect for the true justice that this tribunal and the world as a whole was trying to achieve. This war was one of the most devastating wars in all of human history and it had one of the most civilian causalities as well, both in Europe and the Pacific. With the Emperor immune, was everybody that was captured at the end of the war brought to justice? The argument could be made for no. Because not all men that could have been tried, were tried. One was allowed to walk free and forget. The fact that this man was also the most powerful man behind the war machine is a true shame for the millions of victims of his genocidal actions, and the millions of Allied soldiers that gave their lives to bring him down.
One the other hand of the situation, the only other thing people wanted perhaps more than justice was peace. Almost the whole world at that point wanted things to just stop and be over. The fact that the Allied leader and the American President saw the foreseeable events of an occupation not running well without the emperor was an act of true brilliance and intuition. The best way to maintain the bigger picture of peace was to let the military, not the Sate leader take the fall. It was done on a hunch, but was an act of true comprehension for the bigger picture of things.
It is important to remember here, that the trial itself was not illegal, nor was the idea that these men should be brought to justice. This trial was a step forward in the right direction to try and prevent/punish future Genocide cases. This was humanities first attempt at one of these trials, and it did fairly well for the actual trial. The problem was the evidence used, the laws used, and the general rush to deliver a popular, victorious verdict of guilty. There was also a general haste and a, “carelessness with which guilt was assigned and punishment inflicted” (Pacific Encyclopedia). While we can agree the trial itself was important, what could be considered even more important is the components, legalities, and proceedings to which the trial conducted itself. This can be considered more important because real lives hung in the balance and eventually lives were lost because of the components of this trial. Things go wrong in every trial and human error happens in all aspects of life, including the court systems. This example though is not just an error in judgement, but also a lapse in thinking and a lapse in consideration for the defendants. These were not the standards that the allied forces should have lived up to. These forces were the examples of what good can truly come if everybody is treated fairly. Not the court, but the components and inner workings of the court were not examples of this extreme idea that these brave men and women fought for every day. Sometimes it is needed to take two steps back in order to make one giant leap forward.
The giant leap forward would come in fixing the problems that were recognized as part of these tribunals. Having a critical review of these trials is the only way to ensure that the mistakes made will not happen again. The tribunal itself was a necessary step in the right direction but to continue in the right path, we need to have better and harder evidence. The evidence presented in courts should all point beyond a reasonable doubt to a person’s guilt or innocence. The evidence is one of the most critical parts of any trial and it must be ensured that the evidence presented is within the bounds of the law.
Another issue that has been examined and fixed in later tribunals and courts is the laws used to convict the defendants. The Tokyo Trials even to this day are questionable to the laws they used against the men. Thanks to the 1948 convention on Genocide conducted by the United Nations, there is now a clear and present crime of Genocide with international laws and punishments for any future agents of the crime (Treaties). This law continues to serve as we head into the modern times and beyond. Also with an advancing international community and better cooperation amongst States, the risk of another physical Genocide has been greatly reduced paving the way for a new type of peace as we move into the future.
As we move into the future, it is important to take a step back and consider what this trial and the subsequent trials means for history and the history of Genocide. It is important to remember that the crime of Genocide is as old as humanity itself. From ancient times to these trials, Genocidal actions have surfaced. In a historical context, these acts were nothing new, or nothing already seen by humanity. In the course of history though, it is sad to consider that this is a more than once occurrence. These trials though in a historical context were groundbreaking. This was the first time that humanity tried to capture and convict people who committed unspeakable acts of violence. Even though we had no international laws, and weak international cooperation; we still tried. We still tried against all of the odds to bring the people responsible to justice. In both Europe and Japan, the people responsible had nowhere to run, and could not negotiate their way out of their situation. These trials, although flawed in some ways, reflect a huge leap forward in global peace and global cooperation amongst nations. This step says something about our character, and our dedication to making sure that everybody is ok in this world. In the timeline of events, the war and the genocide of both Europe and Japan could be considered steps back on a global timeline for peace. In the end though, the trials and the subsequent international laws and cooperation lead to an enormous step forward from war, and from Genocide. All this violence spurred peace and a better web amongst countries.
Now we are left to wonder, why. Why does all this happen? Perhaps the answer lies in the fact that the only possible way for better peace, is to learn from immense violence. Each step taken in this world for a better one came from an act of violence, or an act of aggression. Sometimes the only way to achieve a more productive peace is to recognize a counterproductive violence. While many critique counterproductive violence as the root of only pure evil, perhaps its greatest gift, is the gift of realization. Realization of what we need to improve upon and what to stop as humans. It truly is a great gift. This gift though only comes from situations like these. The chance for a better tomorrow and a brighter future is rooted deep within the night of today. While we are full of doubt now, it all leads to a better place. A better place awaits you’ll see.
Today the International Military Tribunal for the Far East becomes all but a distant memory. The horrors of how this tribunal came to be will stick to humanity forever though. As we move into the future we must as a human race forgive the errors of the past. Only by forgiveness and a general trust in the future of all nations will we truly be able to move on in a global sense. While we must forgive, we must never forget either. We must never forget lives lost in the most tragic ways possible and we must never forget how and why these acts should never surface again. While there is so much bad in this world and we never know what lies in store for us around each blind corner, the good of humanity will always prevail even at the greatest costs. It is important to remember that there is far more good in this world than there is bad and it is our responsibility as a race of living creatures to make sure that it always stays that way.
Works Cited
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