General Tomoyuki Yamashita was hanged in Manila on February 23, 1946. The fate of this officer, a first-class fighting man,affirmed something new in the annals of war. For Yamashita did not die for murder, or for directing other men to do murder in his name. Yamashita lost his life not because he was a bad or evil commander, but simply because he was a commander, and the men he commanded had done unspeakably evil things.
Yamashita was tried by military commission, a panel of five general officers, all American, sitting in the great ballroom of the bullet-pocked U.S. high commissioner's residence in Manila. General Douglas MacArthur, as overall Pacific commander, had the power not only to convene such commissions but also to establish their powers and procedural rules. A military commission had sentenced to death certain German saboteurs landed in the United States in the summer of 1942. Such a commission was not bound by the procedural rules and safeguards inherent in both the civil and the court-martial systems.
Command responsibility is as old as war. So is guilt for murder done or murder ordered. What was different about Yamashita's case was responsibility--to the death--for murder tolerated, knowingly or not. Colonel Harry Clarke, the general's able and articulate chief defense counsel, put it plainly in his opening statement to the officers of the commission: "The Accused is not charged with having done something or having failed to do something, but solely with having been something....American jurisprudence recognizes no such principle so far as its own military personnel are concerned....No one would even suggest that the Commanding General of an American occupational force becomes a criminal every time an American soldier violates the law...one man is not held to answer for the crime of another." But Yamashita was.
Once the war had ended, details of the last hideous days in the Philippines began to see the light of day. For three weeks the commission heard ghastly details of slaughter and rape, of beheadings and burnings alive, of torture and wanton destruction, of the murders of the helpless--women and babies and priests and American prisoners of war.
The prosecution's position was simple. The atrocities committed by Japanese troops were so widespread that Yamashita must have known of them; if he did not, they argued less convincingly, "it was simply because he took affirmative action not to know." So the prosecution's case was that Yamashita knew or should have known of the horrors committed by his men, even though Japanese command and communication had broken down almost entirely during the last days of the war in the Philippines.
Although MacArthur's headquarters assisted in procuring defense witnesses, it also advised the commission that it was "disturbed by reports of possible recess" and that it doubted the "need of Defense for more time." Most specifically, MacArthur's deputy chief of staff announced that his boss "desires proceedings completed [at] earliest possible date." The military commission soon announced its opposition to any continuance save "for the most urgent and unavoidable reasons."
There was more for Yamashita's defense counsel to be uneasy about. Five American generals sat on the commission. None was legally trained. Throughout the hearing they seemed impatient with traditional legal procedure, including some of the safeguards accorded the accused. The commission repeatedly directed defense counsel to shorten their cross-examinations and forbade both sides to criticize any interpreter in open court. Counsel was to question, said the commission, with "short, simple questions as free from artifice as if examining a child."
Perhaps this apparent impatience was because the command feared a prolonged proceeding would eat up the time of the members and therefore delay the start of other war crimes hearings. One reporter observing the trial attributed a more sinister motive: "In the opinion of probably every correspondent covering the trial, the military commission came into the courtroom the first day with the decision already in its collective pocket."
Maybe so; if that was the case, however, it reflected no more than the opinion of most of the Western world and much of the Orient as well. The revealed horrors of Japanese occupation warped a lot of people's views. A Time magazine writer, for example, raged about Yamashita's brutality during the Bataan Death March. The writer forgot, if he knew or cared, that the general had been stationed in Manchuria in those far-off days. Time tended to take a somewhat disdainful tone anyhow, referring to the major Tokyo trials as a "third-string road company of the Nuremberg show."
The appearance of predetermination became even more pronounced when the defense revealed its intention to appeal to the Philippine Supreme Court. Both the commission and the American commander in the Philippines refused to provide copies of the transcript of trial; defense counsel prepared their own, working far into the night. And while the appeal was considered, the trial itself wound down.
By this time many observers were concerned that Yamashita was not being accorded due process. As the defense pointed out, some of the evidence against him was hearsay three times removed, and the defense was being continually directed to hurry up. Even worse, defense counsel had been confronted with allegations of 59 additional crimes even as the trial began. They had, they urged, been granted no time to prepare against these new accusations. The judges were paying little attention to the defense evidence, counsel argued, or rather to the lack of persuasive proof for the prosecution. Twelve international correspondents, they said, had taken a straw vote and unanimously found Yamashita not guilty.
Even before the Philippine court announced it had no jurisdiction over U.S. Army proceedings, defense counsel had petitioned the U.S. Supreme Court, aware that the delay needed to transmit briefs to Washington might permit execution of Yamashita before the high court could hear the case.
The result of their appeal was titled In re Yamashita. Before the Supreme Court Yamashita's lawyers argued powerfully, as they had in Manila, that charges against Germans at Nuremberg had alleged "knowledge and participation" in criminal acts. No such accusation had been made against Yamashita, nor had the proof shown he even knew of such crimes.
But the high court was not, it said, "concerned with the guilt or innocence" of the general. It considered only its power to review the proceedings of the military commission, and found that it had none. Only military authorities were "authorized to review" what the commission had done. Over a vigorous dissent by Justices Frank Murphy and Wiley B. Rutledge, the Supreme Court declined to hear the case.
Even as the appellate proceedings ended in Washington, the trial moved to its dramatic conclusion in Manila. After counsel had finished its closing argument, the commission announced it would rule within 46 hours. Its verdict of guilty was no surprise to anybody, including Yamashita; neither was the sentence to death by hanging. Significantly, perhaps, the date of the judgment was December 7.
Yamashita was only one of thousands facing trial for their actions during World War II--and before the war for those who had participated in the rape of China. Japanese soldiers had been killing, raping, looting and torturing all across the East since the 1930s. In 1945, at long long last, the bill was coming due. Before the courts-martial and military commissions recessed for the last time, some 5,600 Japanese had been prosecuted in more than 2,200 trials. Of these men--and a few women--more than 4,400 were convicted, and about 1,000 were executed. Testifying to the Allies' determination to deal fairly with the enemy, there had also been about the same number of acquittals.
The nations that sat in judgment were the United States, Great Britain, Australia, the Netherlands, France, the Philippines and China. Some Japanese were "tried" by the Soviet Union at its Kafkaesque worst, the tribunals serving simply as mouths for the rawest sort of political slander of the West. In stark contrast to their comrades in arms tried elsewhere, the defendants almost uniformly pleaded guilty, apologized publicly, and had something warm and fuzzy to say about the exemplary justice of the "People's Paradise." Soviet trials are not included in the totals given above.
Preparation for dealing with war crimes had begun by mid- 1942. The Western powers by then knew a good deal about atrocities already committed during the war, to say nothing of the ghastly reign of terror that characterized the Japanese invasion of China from 1937 on. Both President Franklin D. Roosevelt and Prime Minister Winston Churchill warned Japan of the consequences of atrocities, and more British and American warnings were delivered to the Japanese government throughout the course of the war. France sent its own warning in 1945, after Japan attacked French garrisons and administrators in what was then French Indochina.
The most important and impressive warning came out of the Potsdam Conference in July 1945. The United States, Britain and China joined in it--the Russians assented later--and its language was blunt: "There must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest...stern justice must be meted out to all war criminals, including those who have visited cruelties upon our prisoners...."
The trial of major Japanese leaders was held in Tokyo--the International Military Tribunal for the Far East began sitting in May 1946--and has often been equated with the prosecution of the leading Nazis at Nuremberg; in fact, there were some important differences between the two proceedings. First, at Nuremberg there were just four judges, and each had an alternate. In Tokyo, there were 11 judges without alternates. Nuremberg operated in four languages, Tokyo in two. At Nuremberg, the four Allied nations were each represented by coequal prosecutors; in Tokyo, the United States led; everybody else assisted.
More important, the charges differed between the two trials. The charter under which the Tokyo court operated gave it jurisdiction only over persons accused of offenses that included the somewhat amorphous "crimes against peace," although such persons might be charged with other crimes as well. At Nuremberg, "crimes against peace" were only one of several categories of possible offenses. And, while Nuremberg included as defendants certain organizations such as the Gestapo, no Japanese organizations, such as the Black Dragon Society, were charged.
Moreover, conspiracy to "wage aggressive war" was the heart of the prosecution's case in Japan. The comparable Nuremberg indictments covered a more logical and broader ground: conspiracy to "plan, prepare, initiate and wage aggressive war." Another difference that provoked considerable comment was the absence from the dock of any of the zaibatsu, the powerful Japanese industrialists. The Nuremberg indictments had included some of the top businessmen in Germany, names such as Hjalmar Schacht and Alfred Krupp. The decision not to prosecute similar people in Japan rested on the paucity of proof to show that the industrialists had aided and abetted the government in preparing and carrying out wars of aggression.
Otherwise, the two trials were similar. The Tokyo court also held defendants accountable for conventional war crimes and "crimes against humanity," much as was done at Nuremberg.
The United States took the lead in the Far East war criminal trials. MacArthur, as supreme commander for the Allied powers, had the authority to convene the proceedings and largely controlled their progress. America's allies were content to have it so. The United States had carried the major burden of the war against Japan and had emerged by far the strongest power in the Pacific. Americans prosecuted more defendants than anybody else and considerably influenced the Allies' trials as well. From the beginning, however, the Allies agreed on one basic premise: The trials should be both public and fair, so that not only the world but also Japan herself should see how evenhandedly free nations dealt with evil.
Immediately after the shooting stopped, the Allies began work on an international military tribunal of the sort established at Nuremberg. The chief prosecutor would be Joseph B. Keenan, a well-known New Deal politician and adviser to President Roosevelt. Keenan turned out to be an able organizer and prosecutor, who worked well with the other Allies. Over time, more than 70 associate prosecutors worked within Keenan's International Prosecution Section. All contributed.
Their targets would be the major Japanese leaders, accused of "crimes against peace," that is, the planning and execution of aggressive war. Other defendants, less prominent and accused of more mundane crimes, would face courts-martial and other lesser tribunals. As at Nuremberg, the Tokyo defendants were to be accorded counsel, assistance in procuring evidence and witnesses, and adequate time to prepare.
The rules of procedure were otherwise relaxed because of the immense difficulty in locating witnesses. As one Englishman put it, this trial and others to follow should "be bound simply by ordinary opinions of fairness and justice." That was a pretty fair yardstick and accorded well with President Harry S. Truman's directive that the trials determine guilt substantially as was done at Nuremberg.
The Tokyo defendants were the politicians and generals, leading war makers in the eyes of the free world, headed by Hideki Tojo, premier of Japan through most of the war. This proceeding was staffed with attorneys in the same manner as the trials at Nuremberg. On the bench were judges from most of the nations whose citizens had been brutalized by the Japanese, led by the court president, Sir William Webb of Australia.
There were 25 defendants. Two more died during the trial. A third defendant deteriorated mentally so far that he could not stand trial. They were all officials of high rank, among them four prime ministers, four foreign ministers, five war ministers, two navy ministers and four ambassadors. Fourteen had been army generals. Another three were admirals.
Tojo was the best-known of the accused, for he had been a symbol of Japanese aggression in the West throughout the war, and had been prime minister during and after the time of Pearl Harbor. The wartime foreign ministers--Koki Hirota, Mamoru Shigemitsu and Shigenori Togo--held roughly the position occupied by Joachim von Ribbentrop in Nazi Germany. Perhaps ominously for the Tokyo defendants, he had been hanged at Nuremberg.
The accused faced a 55-count indictment, an extraordinary document drafted mostly by Arthur Comyns-Carr, the British prosecutor, with advice from many of the other national prosecutors. Comyns-Carr had to compromise, as one American lawyer put it, "between the eleven legal systems involved," but in the end he managed a coherent document that "fairly apprised the accused of the offense with which they were charged."
Every nation's prosecutor signed the indictment, which charged the accused with "crimes against peace"--36 counts; "murder"--16 counts; and "other conventional war crimes and crimes against humanity"--3 counts. In broad outline, the defendants were accused, somewhat imprecisely, of conspiring between 1928 and 1941 to wage "aggressive war," in order to gain "domination and control of East Asia." As in Yamashita's case, the prosecution argued that they either knew or should have known of widespread atrocities and did nothing to stop them.
One obvious defendant would be missing from the dock. Emperor Hirohito would not be tried, in spite of widespread demand that he be prosecuted. The ostensible reason was that he had been only a figurehead, overridden by a military cabal. In fact, the probable reason was MacArthur's insistence that conviction of the emperor would end whatever stability remained in Japan.
The Tokyo prosecution began in May 1946; after hundreds of sessions, it closed in November two years later. The trial was held, perhaps symbolically, in the auditorium of the Japanese War Ministry building, and in the audience were 100 correspondents, both Japanese and Allied, and several hundred spectators. Before it was over, the prosecution had produced more than 400 witnesses, almost 800 witness affidavits and about 1,000 other documents.
The trial was conducted under one serious handicap not present during the Nuremberg prosecutions. In spite of the presence of more than 150 Japanese staff, effective simultaneous translations could not be managed. Counsel was therefore limited to short questions posed in elementary language or written interrogatories submitted in advance. This restriction undoubtedly handicapped lawyers for both sides in getting at the truth.
As symbolically important as the Tokyo venue were the opening remarks of Sir William Webb. The tribunal would deal fairly, he said, without prejudging: "To our great task we bring open minds both on the facts and the law....The onus will be on the prosecution to establish guilt beyond a reasonable doubt."
That set the stage. Whatever abuses of justice Japan and the Japanese had committed, there would be no abuses here. Defense counsel were both Japanese and American. Although most of the defendants chose men of their own country to represent them, including some of the finest legal minds in Japan, the Americans were able to help their Japanese counterparts with Western legal concepts and procedure. In any event, counsel from the two recent enemies produced a tough and outspoken defense.
Defense counsel asserted that there could have been no conspiracy to make war. Fifteen Japanese cabinets had come and gone between 1928 and 1941. Moreover, the accused had often disagreed among themselves; some had opposed certain decisions of the Japanese leadership; some had opposed the war itself. Where there was neither continuity nor agreement, argued the defense, there could by definition be no conspiracy. It was a powerful argument.
Moreover, Tojo himself took responsibility, as premier, for anything either he or his country had done. He asserted, however, with the other defendants, that they--and Japan--had made war only in "self-defense," relying for defense on the West's freezing of Japanese assets, the provision of military assistance to China, and "inflexible and unsympathetic" demands that Japan withdraw from China.
The judgment at Tokyo was not handed down for seven months after all the evidence was in. When it appeared, in November 1948, it was 1,218 pages long, more than 1,000 of which were devoted to findings of fact. The judgment itself took a mere seven pages; the verdicts required 82 more. All defendants were found guilty, and the sentence was death by hanging for Tojo, Foreign Minister Koki Hirota and five generals (Kenji Doihara, Seishiro Itagaki, Hyoturo Kimura, Iwane Matsui and Akira Muto). Sixteen others got life. Two sometime foreign ministers, Shigenori Togo and Mamoru Shigemitsu, were sentenced to periods of years. Togo died in prison; Shigemitsu, a phoenix from the ashes, would again serve Japan as foreign minister.
The commission rejected Japanese self-defense claims out of hand. Prewar Western measures, said the opinion, were only in reaction to Japanese aggression begun years before. Japan had certainly waged aggressive war against the Western nations, said the tribunal, and had begun it by "unprovoked attacks." Those killed by Japan in the course of such an unlawful, aggressive war had therefore been murdered. Perhaps more damning, the commission found Japan had consistently violated the laws of war. Only 4 percent of American and British prisoners of war held by Germany and Italy had died during the war. Of those held by the Japanese, a shocking 27 percent had not survived. A good many had been murdered; most had died of disease, mistreatment and malnutrition.
The judgment was not unanimous. Eight of the judges, including the American Myron Cramer, judge advocate general of the U.S. Army, concurred in the judgment and sentences. Sir William Webb dissented, at least to the degree that he thought the offense of conspiracy had no basis in international law. He also thought that some of the sentences were excessive and suggested that Hirohito might well have been prosecuted with the rest.
By contrast, Delfin Jaramilla of the Philippines disagreed only in that he thought some of the sentences too lenient. H. Bernard of France found fault with the procedure of the tribunal, and therefore with the resulting judgment. B.V.A. Roeling of the Netherlands dissented in part, urging that Foreign Minister Hirota be acquitted since he could neither have known of atrocities nor prevented them. For similar reasons, he also voted to acquit four other defendants. At the same time, Roeling argued that three defendants who had been sentenced to life should have been given the death penalty for conventional war crimes.
The only complete dissent came from Radhabinod Pal of India. He had joined the tribunal quite late, after the British decision to grant independence to India. Pal's long dissent argued that all the defendants should have been acquitted on all counts. Japan had acted in "self-defense," he said, "really driven to take action." The thousands of atrocities had been "all stray incidents," he continued, along the way attacking the American decision to drop the atomic bomb. Pal's somewhat vitriolic dissent was generated by his complete commitment to "Asia for the Asians." In fact, he was a member of the Indian puppet army that served with the Japanese at a time when the vast majority of Indian soldiers remained true to their salt. One of the other judges believed Pal had come to the trial determined to vote for complete acquittal.
Before the curtain finally fell on the Tokyo trial, a final act was played out before the U.S. Supreme Court. Two defendants, Hirota and General Doihara, petitioned for review of their convictions. On December 20, 1948, the Supreme Court replied that it had no jurisdiction to hear the appeal; the International Military Tribunal was not a court of the United States, and therefore was beyond the Supreme Court's power to review. Three days later, the Tokyo death sentences were carried out.
It is almost impossible to accurately compare the results of the Tokyo trial to those reached at Nuremberg, although some have charged, on no particular evidence, that the results at Tokyo were more severe toward the accused than the verdicts at Nuremberg. For what it's worth, here are the numbers: 25 men were tried at Tokyo, all convicted; of 22 Nuremberg defendants, three were acquitted. There were 16 life sentences at Tokyo, only three at Nuremberg; but 12 Nazi defendants (including Martin Bormann in absentia) were sentenced to death, as against only five Japanese.
So the Tokyo prosecutions passed into history. If they had held center stage in the public eye, they were only a tiny fraction of the war crimes trials. The rest took place all across the Orient and did not end until 1951. These defendants--those who committed the acts and those who ordered them--were accused of more conventional crimes, violations of the laws of war and ordinary civilian crimes of rape, murder and maltreatment.
American military commissions required at least three members, almost always officers. One member ruled on evidentiary matters as "law member"; the law member was not required to be a lawyer, and usually was not. The accused--sometimes several of them--were entitled to counsel and to the production of evidence for the defense. All proceedings and sentences were reviewed by a staff of lawyers before approval.
Defense counsel, mostly American, worked hard and faithfully for their clients, and the American government expended many millions of dollars in finding documents and witnesses requested by the defense. Many trials turned into down-home dogfights between prosecution and defense. And if adversary trials took a little longer, they preserved the American tradition of fair play in the eyes of most observers. Commenting on the conduct of the trials, one American law professor paid the ultimate compliment: "The legal profession will say of defense counsel--'well done.'"
The Yamashita case was the most famous of the American trials, but there were hundreds of others. One defendant was Lt. Gen. Matsaharu Homma, author of the Bataan Death March and the bombing of undefended Manila. Homma's headquarters was less than 500 yards from the road down which suffering American and Filipino prisoners were marched; Homma admitted he had even driven down the road himself. From the evidence Homma had to have known what his men were doing on that blood-soaked road, and little criticism accompanied his hanging in April 1946.
In 1947, American authorities turned over to Filipino prosecutors the conduct of the remaining trials, including successful prosecution of Yamashita's predecessor, General Shigenori Kuroda, charged with more than 2,800 deaths. In spite of the long and ugly occupation of the Philippines, this trial and the rest showed the same dedication to fairness that had characterized most of the American prosecutions. The chief defense counsel, a Philippine army captain, put it pretty well. "I am duty bound to see that every Japanese accused of atrocities is given a fair trial...," he said. "No right-thinking citizen would like to see the Philippines commit a historical blunder through its courts by allowing conviction of innocent people just because they were former enemies."
The tribunals were scrupulously fair, and defense counsel fought as hard for their clients as they had under American administration...sometimes too hard. In one hotly contested case, the Filipino prosecutor and Japanese defense counsel came to blows in the courtroom. It is a testament to Filipino fair play that the defendant was acquitted in spite of the antics of his counsel.
In one spectacular display of generosity, Philippine President Manuel Roxas formally appealed to China's Chiang Kai-shek to spare a Japanese officer accused of war crimes in China. This officer, wrote Roxas, had saved several Filipino lives, including Roxas' own. Chiang Kai-shek granted the Philippine president's request.
By the time trials in the Philippines were over, 215 Japanese had faced military commissions. Twenty had been found not guilty; 92 had been sentenced to death. But those proceedings were only part of the work. There was a great deal more to do.
American personnel worked closely with nationalist authorities in China, especially in coordinating the movement of witnesses and suspects from Japan to China for Chinese war crimes trials. In Shanghai, American tribunals prepared to conduct their own trials, with the blessing of the Chinese. The defendants in those proceedings were mostly Japanese who had participated in the "trial" and execution of American airmen under something called the "Enemy Airmen's Act," promulgated after the surprise and shame of the Doolittle raid on Japan in April 1942.
Most of those trials resulted in convictions and a good number of executions. Still, the commissions had taken pains to ensure a fair trial for the accused and had shown considerable clemency to men who had acted under orders, even in the case of the Doolittle fliers. Obedience to high authority might not be a defense, but at least some of the commissions considered it a matter in mitigation. In the end, the American trials in China ended with about the same number of acquittals as those in the Philippines (10 percent) and many fewer death sentences.
Many American trials were held by the U.S. Navy for crimes committed in the Pacific islands. Three took place on Kwajalein in the Marshalls; 44 were tried on Guam. Many of those proceedings involved close cooperation with British, Australian and Indonesian authorities. In some cases, courts of one nation tried Japanese for offenses against personnel of an ally. The victims of the Japanese included not only Allied personnel but also Swiss, Spanish and many Pacific islanders.
Most of the crimes alleged were personal and ugly. Nineteen Japanese were tried for a series of medical "experiments" at Truk in 1944. The defendants had murdered American prisoners by--among other things--injecting them with streptococcus bacteria. Others clamped tourniquets on prisoners' arms and legs for seven hours. When these were removed, two prisoners died of shock.
Other notable trials included the prosecution of a rear admiral and others for the murder of 98 Pan American airline employees on Wake Island in 1943. The admiral and 10 more were sentenced to death. Another group of 18 was convicted of murdering civilians in the Palaus, and many others were held accountable for civilian murders in the islands, usually of natives executed as "spies" on no evidence.
Meanwhile, in Japan, a series of trials continued in Yokohama, the defendants including such disparate persons as Shinto priests, medical personnel, professors and farmers, in addition to military personnel of all ranks. Most of those proceedings involved maltreatment of prisoners, a bitter litany of starvation, beating and general neglect that caused thousands of deaths.
One case involved the notorious "hell ship" Oryoko Maru, on which some 1,300 prisoners died en route from the Philippines to Japan in 1944. The guard commander was sentenced to death, as was his interpreter, and four others were sent to prison. Significantly, the commission acquitted the ship captain, ruling that he had no power to intervene.
Particular targets of American prosecutions were members of the Kempeitai, the secret police, famous for its brutality and arrogance. Fatal beatings, beheadings, even poisonings of prisoners, were commonplace in the cells of this detested organization. Just as loathsome were the crimes of Japanese medical personnel who had murdered American prisoners by, as one angry indictment put it, "vivisecting them, mutilating and dissecting and removing parts from and otherwise desecrating the bodies of said prisoners." One medical defendant was the first woman to be tried by the commissions, an army nurse accused of participating in sadistic medical experiments.
Many of the crimes alleged against ex-servicemen were committed out of pure revenge, and for these defendants American tribunals had little mercy. Five Japanese seamen got life sentences for the murder of five Americans at sea in 1942. The accused had told the American victims that because they had killed "many Japanese soldiers on Wake Island...you are now going to be killed for revenge."
One case begun in Japan finished in America, the trial of one Tomaya Kawakita, who argued that because he was born in the United States and was therefore a citizen, he was entitled to trial before an American civilian court. A military commission in Yokohama agreed with him, but sometimes it is better not to get what you wish for. Returned to Los Angeles, Kawakita got his trial before an American court...and was sentenced to death.
The British commander in the Far East, Lord Louis Mountbatten, made it clear from the start that war crimes trials would be straightforward criminal matters. Britain would have nothing to do, he said, "with trials of a purely political nature." Conviction would be only by proof beyond a reasonable doubt. And, as one British prosecutor announced to his court, the trials should "demonstrate to the world that great distinction" between British and Japanese justice.
And so they did. British prosecutors tried accused Japanese all across the East--up and down the Malay Peninsula, in Borneo, New Britain, Rangoon and Singapore. British concern for fairness did not, however, imply any special leniency as to sentence. One trial of 35 Kempeitai for murders of Malay civilians produced 21 death sentences. A second trial of Kempeitai produced eight more sentences to the gallows, this time for torture of British prisoners.
Some British trials attracted special attention, like the American prosecutions of the Japanese who had brutalized and murdered American airmen after the Doolittle raid. The most notable of the British proceedings was the prosecution of the "River Kwai" defendants, the men responsible for the deaths of almost 600 of the 2,000 prisoners who built the BurmaSiam railroad. After hearing days of ghastly evidence from survivors of the deadly railroad, the British court sentenced two of the worst offenders to hang, the others to long terms in prison.
British defense counsel was generally able and dedicated and made much use of the "superior orders" defense. The Japanese social and military order was, they argued, dominated by the idea of absolute obedience to orders at all levels. And sometimes the plea worked. Like their American counterparts, British courts could also show mercy. One Japanese sergeant was convicted of brutality toward a British prisoner. However, since the evidence showed that the man had beaten his victim only under threat of punishment by his superior, the British court sentenced the Japanese soldier to a single day's confinement.
Like the British and Americans, Australia's courts were determined that justice not only be done fairly but also be perceived as fairly done. Unlike the other nations, however, the Australians compiled a detailed war crimes list of 35 separate offenses. It included "crimes against peace," of course, but also a litany of particular offenses including not only conventional crimes but also the unusual and the bizarre, such as "cannibalism" and "mutilation of a dead body." It was as well that Australia itemized such grotesque crimes, for that country would have to try them.
Depending on where trials were held, the Australians relied considerably on their allies. Offenses against Australians were tried by both British and American courts, sitting with an Australian member; sometimes Australian officers prosecuted before these Allied courts. The British, Chinese and Indians furnished officers to sit on Australian courts trying offenses against their own countrymen.
Perhaps more than any other, the Australian trials revealed the depths of depravity to which the Japanese sometimes sank. One trial on New Guinea condemned a Japanese officer who ate part of an Australian prisoner. Unimpressed by the defendant's claim that starvation had deprived him of his sense, the Australians hanged him. Another court convicted a defendant of crucifying four airmen, including one American, in the Celebes.
The Australians put on the largest trial of the entire postwar period, accusing 93 Japanese together with cruelty to American, Australian and Dutch prisoners in Amboina. And in Rabaul, New Britain, for most of the war a large Japanese base, an Australian court heard a hideous tale of calculated ill treatment of about 1,000 American and British prisoners of war. Ill, malnourished, mistreated, these men were driven 165 miles over very bad terrain. Only 183 survived the trip, and 150 of those died soon after arrival. The Japanese commander executed the survivors and survived the war himself. He did not survive the court's verdict.
China tried more than 800 defendants of whom there is record, including some of those responsible for the butchery in Nanking and Shanghai. Of the 800, some 500 were convicted. Of those, 149 were put to death. France and the Netherlands tried several hundred more. The French were still at it in 1951. Generally, the proceedings followed the same pattern set by the other trials, and like the other powers, France tried Japanese for offenses against Allied personnel as well as their own. And, like the other nations, the French tried many offenses against the civilian population, including some unusual crimes, like the Japanese civilian on Java who forced dozens of women into prostitution for the military authorities. He had acted only under orders, pleaded the defendant. It cost him 10 years.
In one of the ugliest trials in the Dutch East Indies a court condemned to death Vice Admiral Michiaki Kamada, who had directed the execution of some 1,500 natives of Borneo. Another four Japanese died for brutality and murder committed on 2,000 Dutch prisoners on Flores Island. Another case involved the death "through maltreatment" of 5,000 Indonesian forced laborers, 500 Allied prisoners and 1,000 civilians.
Although Japanese defendants regularly pleaded not guilty, from time to time some of them admitted the fearful things with which they were accused. One prison camp commander admitted he had gouged eyes and tortured prisoners. A Kempeitai officer was even moved to demonstrate how he had kicked a prisoner. Although the defendant claimed that his blows caused no harm, the scars on the wooden courtroom table he had kicked cost him five years in prison.
The French, who tried fewer cases than anybody else, quite practically approached most of their cases as trials of ordinary crimes. Prominent among the defendants were members of the vile Kempeitai, charged with hundreds of incidents of murder and torture of both French and Vietnamese prisoners. And, like the British, the French helped American war crimes teams seeking Japanese who had brutalized Americans. Five Japanese were executed for the murder of American airmen in Indochina, thanks to the assistance of the French.
The Russian trials were mostly pulpits for propaganda attacks on the West. The "imperialist policy" of their erstwhile allies, said the Russians, had led them to abandon "the struggle against war criminals." The Russians never tired of harping on Western decisions not to try the "greedy capitalists," the zaibatsu of Japanese industry.
The thrust of the Russian trials, such as they were, concentrated on alleged Japanese "manufacture and employment" of bacteriological weapons (of which the International Military Tribunal found no evidence at all). The Japanese had started these preparations as early as 1935, the Russians claimed, bred fleas to carry plague, and manufactured shells and bombs to spread contamination. Moreover, said the Russian prosecution, the Japanese had experimented on human guinea pigs and actually used bacteria in China between 1940 and 1942. Naturally, the zaibatsu were at the bottom of all these nefarious doings.
The Russian "defense," outdoing the prosecution in the production of sanctimonious claptrap, excused the participation of ordinary Japanese soldiers as due to a sort of arrested development. The accused had not had the advantages of those fortunate enough to live "under the sun of the Stalin Constitution." The Western press was excluded from these otherwise "public" trials for obvious reasons, but the tame Communist media let the world know that "Japan and its American allies" were plotting to use such hideous weapons against Russia.
Later, of course, they followed up with the nonsense that such weapons were actually used against North Korea and China. The West had "unleashed the most inhuman carnage in history, warfare with the assistance of microbes, fleas, lice and spiders...." And on and on.
By 1951 it was over. No doubt the justice meted out to a variety of criminals was important, but not nearly so important as the demonstration that the victorious West would deal fairly with its prostrate enemy, no matter how vile the crimes it had committed. A great many Japanese, including many of the accused, later commented on the fairness of the trials and the length to which the victorious powers went to provide and assist the defense.
U.S. Supreme Court Justice Murphy accurately summed up the great danger the Allies had successfully faced in the Far Eastern trials, speaking in his powerful and vigorous dissent in In re Yamashita. Justice had to be preserved, he wrote, no matter what the cost, no matter what guilty men went free. "To conclude otherwise," he continued, "is to admit that the enemy has lost the battle but has destroyed our ideals."
The enemy had lost both battles. *
Robert Barr Smith, a retired Army colonel and a professor of law at the University of Oklahoma, has also written for World War II on the Nuremburg Trials. Further reading: The Japanese On Trial: Allied War Crimes Operations in the East, 1945-1951, by Phillip Piccigallo; and Victor's Justice: The Tokyo War Crimes Trial, by Richard Minear.
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