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LEGAL MURDER

Authors: Manav kothary and Akshi Jain, I year of B.B.A., LL.B. from Karnavati University (United World School of Law)


Following World War II, the victorious major Allied powers—France, the Soviet Union, the United Kingdom, and the United States—set up the International Military Tribunal (IMT) in Nuremberg, Germany, to prosecute and punish “high-level political officials and military authorities for war crimes”, announced in 1942 by St. James Declaration and signed in 1945 known as the London Agreement, the first international criminal tribunal, was established.


Under the 1946 proclamation by U.S. Army General Douglas MacArthur, Supreme Commander for the Allied Powers in occupied Japan to honour the Cairo declaration, Potsdam declaration, the Instrument of surrender, and the Moscow treaty, The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo trial, basing Nuremberg Charter, was created at Ichigaya Court, from April-29-1946 till November-12-1948. The courtroom was also designed to replicate the one being used to try Nazis in Nuremberg, Germany.



We have reasons to believe that the Tokyo Trial was not less than the victors to retaliate as the judgment was also the dictum of the prejudiced majority:

❖ The funding and staffing were all provided by the US making it difficult to uphold impartiality.


❖ Eleven countries provided judges, which does not include any Japanese judge. Justice Bert Roling:

"I think that not only should there have been neutrals in the court, but there should have been Japanese also."


❖ President Justice William Webb, who had the fortitude to maintain a courtroom at its best level, a perfect example of a great leader. Under his authority, even the minority opinions were regarded as significant as the majority. To disgruntled it Japan signed, “The San Francisco Peace Treaty” on September 8, 1951, Article 11 is read as:

“In the case of persons sentenced by the International Military Tribunal for the Far East, clemency power may not be exercised except on the decision of a majority of the governments represented on the Tribunal, and the recommendation of Japan.”


❖ Justice Jaranilla of the Philippines tried to honour that ‘no one should judge his own cause’, by recusing himself from the proceeding of Bataan Death March, whom he was also a recipient, ensuring that he didn’t jeopardise his authority by betraying his very emotions in the court said:

The penalties imposed by the tribunal are too lenient, not exemplary and deterrent, and not commensurate with the gravity of the offence or offences committed. There is no progress in international law if the wrongdoers are free just because waging aggressive war was not a crime when Japan went to war.”

The evidence about atrocities, by the members of the Japanese armed forces against the civilians and the prisoners of war made shivers down anyone's spine, and sermonising about their legal exculpation could be actual injustice. In a survey of 3,000 Japanese people conducted by Asahi News as the 60th anniversary of IMTFE approached in 2006, some 76% of the people polled recognized a degree of aggression on Japan's part during the war, while only 7% believed it was a war strictly for self-defence and the rest 17% was unaware about the tribunal. However, we believe that there should be a fine line between justice and revenge and as a jurist, one must be objective while deciding a suit.

Blue-book has some rudimentary principles, like:

⮚ Hearsay evidence cannot be admissible in any court of law,

⮚ Protection from ex-post-facto law.

Article 13 of the charter for the International Military Tribunal for the Far East states:

That evidence against the accused could include any document "without proof of its issuance or signature" as well as diaries, letters, press reports, and sworn or unsworn out-of-court statements relating to the charges. The tribunal shall not be bound by technical rules of evidence and shall admit any evidence which it deems to have probative value.


Prosecution Vs. Defence

The prosecution took 192 days to present its case (May 3, 1946, finishing on January 24, 1947) and had to prove three things:

I. War crimes were systematic or widespread;

II. The accused knew that troops were committing atrocities;

III. The accused had the power or authority to stop the crimes.


Tanaka Memorial was presented as evidence, which is considered forged by most historians. Wartime press releases of the Allies were admitted as evidence by the prosecution, while those seeking to be entered by the defence were excluded. The recollection of a conversation with a long-dead man was admitted. Letters allegedly written by Japanese citizens were admitted with no proof of authenticity and no opportunity for cross-examination by the defence.

The defendants opened their case on January 27, 1947, and finished its presentation 225 days later on September 9, 1947.


Defense LawyerIchiro Kiyose presented fabulous arguments and tried his best to prove the accused innocent of every charge levied on them. The Defence Insisted that:

t▪ Japan was a signatory of the Pact of Paris 1928 or General Treaty for Renunciation of War, an instrument t of National Policy, which condemns war as a means to settling international disputes, but gives Japan the sovereign right to declare the war as an act of self-defence or “war of self-defence”. However, it did not provide any legal ground for criminalizing war and certainly, it does not say anything about the officers or the politicians as individual perpetrators.


▪ There was no basis in international law for holding individuals responsible for acts of state, as the Tokyo Trial proposed to do.


▪ He attacked the notion of negative criminality, by which the defendants were to be tried for failing to prevent breaches of law and war crimes by others, as likewise having no basis in international law, and which cannot be arbitrarily imposed.


▪ He even tried to vacate President Justice William Webb from the bench because he had investigated alleged Japanese atrocities in New Guinea which could make the judgment biased. However, he was countered on this point by Justice Northcroft stating Art. 2 of the Charter which says:

The tribunal shall consist of the members appointed by Gen. Mac Arthur and the tribunal cannot unseat any member appointed by General.’’


JusticeRadhabinod Pal, of India, was an adamant and person of principles and dignity, who never bowed down in front of the majority. He was the only member in the tribunal who was against the trials from the very beginning as he was convinced that the tribunal is a bit discriminatory who is favouring the Allied Nations believed that:

It was somewhat misplaced caution to introduce this best evidence rule particularly when it operated practically against the defence only. While taking into account the influence of wartime propaganda, exaggerations, and distortions of facts in the evidence, and ‘overzealous’ and ‘hostile’ witnesses, this trial could never be freed from substantial doubts as to the legality, fairness, and impartiality. Progress in law must not be achieved in haste. Justice cannot be achieved at the end of the rope.”


Cocooned Culprit: Emperor Hirohito

Justice Henri Bernard of France said in an interview after the proceeding:

Japan's declaration of war had a principal author who escaped all prosecution and of whom in any case, the present Defendants could only be considered as accomplices and that a verdict reached by a Tribunal after a defective procedure cannot be a valid one.

President Justice William Webb of Australia indicated about Emperor Hirohito that:

"No ruler can commit the crime of launching aggressive war and then validly claim to be excused for doing so because his life would otherwise have been in danger. It will remain that the men who advised the commission of a crime, if it is one, are in no worse position than the man who directs the crime be committed."


The Truman Administration and General MacArthur both believed the occupation reforms would be implemented smoothly if they used Emperor Hirohito to legitimize their changes. According to historian Herbert Bix, Brigadier General Bonner Fellers worked behind, to skew the testimony of the defendants to ensure that no one implicated the emperor. People arrested as Class A suspects solemnly vowed to protect their sovereign against any possible taint of war responsibility.

Well said by John Lyly: “The rules of fair play do not apply in love and war.”, hence the basis of violation of the law of war is irrelevant. As war is itself chafed by law, which law can govern it?

Want aggressive revenge or War is a dialogue. There is a prima-facie –subjugating-‘held liable’ party but the latter is also no less culpable for the repercussions of war. The exclusion of Western colonialism and the atomic bombings of Hiroshima and Nagasaki from the list of crimes and the lack of judges from the vanquished nations on the bench signified the failure of the Tribunal. Justice Bert Röling:

It was horrible that we went there to vindicate the laws of war, and yet saw every day how the Allies had violated them dreadfully.


There was a legal immunity before the preconceived arbitrary decision for deciding the fate of the commanders of the surrendering party as well as the political immunity to the Allied Powers' violations of international law. For the sake of greater justice, if the Tokyo trial has ousted the basic principles of law, we think that it should be for all the offenders instead of all the surrenders, those accused whoever was responsible must not escape such terrible crimes, if not then any tribunal will be a little more than a sword in a judge's wig.

Reference:

https://www.ndl.go.jp/constitution/e/etc/c06.html

http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf

https://web.archive.org/web/19990222030537/http://www.yale.edu/lawweb/avalon/imtfech.htm

Wilson, Sandra; Cribb, Robert; Trefalt, Beatrice; Aszkielowicz, Dean (2017). Japanese War Criminals: The Politics of Justice after the Second World War. New York: Columbia University Press. ISBN 978-0231179225.

The Tokyo Judgment and the Rape of Nanking", by Timothy Brook, The Journal of Asian Studies, August 2001.

http://www.harpercollins.com/author/authorExtra.aspx?authorID=13941&isbn13=9780060931308&displayType=bookinterview

https://web.archive.org/web/20061108001700/http://www.mansfieldfdn.org/polls/poll-06-3.htm

https://www.legal-tools.org/doc/462134/pdf

Pal, Radhabinod. "Dissentient Judgment of Justice Pal". Society for the Dissemination of Historical Fact.

Tokyo Trial Series- 2016





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