THE STORIES REACHING the supreme commander’s desk were too sickening to read. No country in the world ever inflicted the human brutality Japan did on its neighbors: more than seventeen million people killed from 1931 to 1945, 95 percent of them civilians. And where was bushido, the honor code of the Japanese warrior? The conditions in Japanese POW camps made those of the Nazis pale by comparison. In German-run POW camps the death rate was 4 percent; in Japanese camps it was 27—almost seven times worse. And much of it was due to deliberate, outright sadism, like the prison guards having a contest to see who could lop off the most heads in a minute.
In January 1946 the supreme commander had issued a directive ordering the establishment of an international military court to try Japanese war criminals. The same day he approved a charter, based on Nuremberg, specifying the crimes to be charged and how the tribunal was to function and be organized. He appointed a panel of judges from eleven countries: Australia, Canada, China, France, British India, Netherlands, New Zealand, Philippines, Russia, and two from the United States, with Sir William Webb of Australia as president of the tribunal.
On May 3 of that year the prosecution made the opening statement of its case against twenty-eight war criminals. Already MacArthur had endured cries of “victor’s justice” for his signing off on the guilty verdicts on the two Japanese generals Yamashita and Homma. With great reluctance he had agreed to a visit from Homma’s wife, a very smart and articulate woman who spoke flawless English. She began by saying she hoped the trial hadn’t been too much of a burden on him. That ticked him off, and he told her brusquely she needn’t concern herself with how he did his job. The emperor had handled his situation so much better: Facing his judge, jury, and executioner in Douglas MacArthur, he had struck the right tone of humility and managed not to step in any minefields. Accepting full responsibility and acting like a leader, he had earned MacArthur’s respect. The supreme commander would protect him and had succeeded in doing so—thus far. This trial could be a problem. Any one of the defendants could try to save his neck by pointing to the emperor and saying he was the one who gave the orders for war, in which case the courtroom would erupt and MacArthur would have a real mess on his hands. A lot of people among the Allies—especially the Chinese and the Russians—wanted the emperor’s head.
Many people questioned the validity of the trial itself. Already this was happening at Nuremberg, now more than halfway over (November 20, 1945–October 1, 1946), where the victors put key figures of the losing nation on trial not only for conventional war crimes but also for “crimes against peace” and “crimes against humanity,” two new and broadly defined crimes. Legal purists said this was ipso facto or “retroactive” justice, putting someone on trial for something that formerly had not been a crime. This, of course, was a specious argument, the kind of legal obfuscation that drove MacArthur up the wall. Rape, murder, wanton slaughter, genocide, killing hostages, violating Red Cross regulations, torture, and mutilation are war crimes, plain and simple. What the Nuremberg Trials contributed to legal theory was the application of precepts of criminal law to war crimes: If a person planned such crimes, or knew about such crimes and did nothing to stop them, or was in a position to know about them and deliberately avoided knowing (in law this is called “willful blindness”), then he became an accessory, a coconspirator, and therefore just as guilty as the direct participant. Also established at Nuremberg was the principle that atrocities could be blamed on the specific individuals involved, not just on an amorphous entity like “the state.”
The Japanese, like the Germans, had violated fundamental precepts of humanity, certainly of every religion. This trial in Tokyo would be the Nuremberg of the East.
MacArthur knew what was coming: The Japanese defendants never had a chance for a fair trial; from day one the deck was stacked against them. Let the lawyers fight that one out. One of the American lawyers generously provided for the defense had already tried that stunt, saying a fair trial was impossible because none of the judges were from neutral nations. Prosecutor Joseph Keenan had put him in his place, saying no neutral nation could be found “until men landed on Mars.” A more serious threat to the trial’s legitimacy would be the Japanese defense, the only one even remotely possible: Japan had waged a war of defense against the Allies, who had cut off its access to raw materials. Carried to an extreme, this argument could claim it was the Americans who were responsible for the attack on Pearl Harbor.
JAPAN NEEDED TO be taught the notion of personal responsibility. In a military setting this is known as command responsibility, whereby an officer is responsible for the conduct of his soldiers. It is an important tradition in the U.S. Army: Gen. George B. McClellan, as commander of the Union forces in 1861, warned all his officers they would “be held responsible for punishing aggression by those under their command.” McClellan further directed that military commissions be established to punish any soldiers who might engage in conduct “in contravention to the established rules of war.”
To set a precedent that would shape the outcome of most of the 2,200 war crimes trials soon to come throughout Asia and the Pacific, MacArthur personally took charge of the first two cases, both of them heard by an American military tribunal rather than an international tribunal. The trials would take place in Manila, where the atrocities had taken place and anti-Japanese hatred was at a fever pitch. He instructed his commander in the Philippines to appoint the prosecutor and five judges from the ranks of the U.S. Army. None of the generals had any experience in the hand-to-hand combat or guerrilla warfare that defined the circumstances of the two defendants; they were “desk” generals. More important, none of them had any legal experience. Even though the rules stipulated that “if feasible, one or more members of a commission should have had legal training,” MacArthur—for reasons he never disclosed—did not find it feasible.
But he did find it feasible to use legal gymnastics to protect himself. In a measure he carried out with what the State Department’s George Kennan denounced as “flealike agility,” MacArthur ordered war crimes trials by U.S. military courts to be placed under his jurisdiction as supreme commander rather than as a U.S. commander, thus further insulating himself from U.S. civil law and any possible overturn by the Supreme Court. Like any good general, MacArthur thought two steps ahead.
At the Missouri surrender signing, MacArthur had chosen Arthur Percival and Jonathan Wainwright to stand right behind him. Seeing the two generals they had earlier defeated on the other side of the table must have had a powerful impact on the humbled Japanese officials. The very next day, September 3, MacArthur had Percival and Wainwright flown down to Manila to witness a second surrender, this one of Percival’s nemesis, Gen. Tomoyuki Yamashita. In 1942, with only 30,000 troops, Yamashita—“the Tiger of Malaya”—had captured Singapore in a stunning victory over the 85,000 British troops under Percival. It was the most shameful Allied debacle of the Pacific War after Pearl Harbor. In fact it was so embarrassing that when Prime Minister Winston Churchill informed the House of Commons, he asked the members to keep the details secret lest the news affect wartime morale. In 1944 Yamashita returned from a tour of duty in Manchuria to take over the defense of the Philippines against MacArthur’s invading forces, and after heavy fighting retreated 150 miles into the mountains to conduct guerrilla warfare. In the meantime a naval group under Rear Adm. Sanji Iwabuchi, contravening Yamashita’s explicit orders that hostilities be kept to a bare minimum, proceeded to slaughter 100,000 Filipinos in the infamous “Manila Massacre.”
MacArthur, anxious to accommodate the Philippine people who wanted revenge, could do nothing about Iwabuchi: He was dead. So he arrested Yamashita. For the supreme commander it was an opportunity to exorcise “Yamashita’s Ghost,” to bury the memory of his own two black marks: the Philippine “Pearl Harbor,” where the Japanese caught all his planes on the ground and bombed them, and his flight to Australia, leaving 78,000 men behind.
The prosecutor filed a bill of s
ixty-four particulars (instances of alleged crimes). The defense had only two weeks to prepare for the trial. Yamashita’s three American lawyers worked around the clock, only to get hit with another fifty-nine particulars three days before the trial, mostly involving new places, new persons, and new witnesses. The defense lawyers filed a motion for an extension, saying they needed more time to prepare; the judges said no, the trial would go ahead as scheduled, and they would reconsider the request at the end of the trial (it was denied). During the trial, standards of evidence were lax. Rumors, hearsay, uncorroborated statements, and anonymous witnesses became the norm: “He told me he was not sure, but he believed” . . . “I guess” . . . “I heard it from somebody.”
Even with so many charges and low standards of “proof,” the prosecutors had a hard time establishing Yamashita’s guilt. He wasn’t in Manila when the events happened, he had given written orders to treat prisoners decently, and communications in the mountains had completely broken down. The prosecutors argued he was guilty of criminal negligence for not controlling Iwabuchi, a man he had never met. In fact Iwabuchi didn’t even report to Yamashita, the commanding Japanese general in charge of the Philippines; he reported to the Japanese navy. The trial became a circus: Day after day the prosecutors hauled into the courtroom a parade of Filipinos telling gut-wrenching stories of rape and beheadings. Observed a journalist in the London Daily Express: “Yamashita trial continued today—but it isn’t a trial. I doubt it is even a hearing. Yesterday his name was mentioned once. Today it wasn’t brought up at all.” In the middle of the proceedings the head judge got a cablegram from MacArthur demanding to know why everything was taking so long, and why Yamashita hadn’t been convicted yet.
When the judges brought the trial to an end, they announced they would have a decision in three days, on December 7, 1945 (the anniversary of Pearl Harbor). How did they know it would be exactly three days? They needed to consider and weigh 400,000 pages of testimony and 423 exhibits. In the interim the twelve international newspaper reporters covering the trial took a straw vote: All twelve predicted that Yamashita would be acquitted.
The verdict: guilty. The sentence: death by hanging. A petition for clemency signed by eighty thousand supporters of Yamashita was delivered to MacArthur; he rejected it. Yamashita’s American lawyers then took the case to the U.S. Supreme Court. The Secretary of War suggested to MacArthur that he postpone the Yamashita execution until the Supreme Court had had the opportunity to decide what to do about the case. MacArthur refused. The War Department then overruled him and issued a direct order. This time MacArthur obeyed.
The U.S. Supreme Court voted 6–2 not to interfere in a court-martial proceeding, but not without the two dissenting justices issuing two of the most blistering opinions ever to come out of the Supreme Court (one of them, Frank Murphy, happened to be the former U.S. governor general of the Philippines: he called the trial “legalized lynching”). Focusing on the trial itself rather than the issue of jurisdiction, the two justices wrote a forty-five-page memorandum charging MacArthur with undue haste and deprival of basic rights. MacArthur, after receiving the verdict by cable and before he had a chance to read the dissenting memorandum, which arrived by plane a week later, announced that “the results are beyond challenge.” Yamashita requested he be permitted the more honorable form of execution, being shot rather than hanged; MacArthur refused. In February 1946 Yamashita went to the gallows.
The New York Times, in explaining its opinion that “a fair verdict was reached,” implied that the real issue was not justice but the need for a conviction, given all the allegations “too well documented in the broken bodies of their living victims and the mutilated corpses that lie in the hundreds of thousands of graves in Asia and the islands of the Pacific. . . . The trial of a general officer for the crimes committed by his troops sets an international precedent. It is high time.”
MacArthur, prone to half-truths and evasions when convenient, announced that reviewing the sentencing of Yamashita was one of the most difficult decisions he ever had to make. One can only admire a man so capable of crocodile tears when the occasion demanded. But then, are not all great leaders great actors? Such a tribute in earlier days had been made by contemporaries of both George Washington and Franklin D. Roosevelt. Had not John Adams said the president was “one of the great actors of the age”? Had not Orson Welles, when he visited the White House for the first time, told the president: “There are two great actors in America, and it is a fine thing we have now met.” MacArthur, too, could rise to that level of leadership prowess.
The hanging of Yamashita was the beginning of MacArthur’s efforts to teach the Japanese a lesson. There was another general he was even more anxious to convict: Masaharu Homma, the man who had beaten him at Bataan and Wainwright at Corregidor, now accused of having ordered the infamous Bataan Death March. Homma’s defense was that he had not known there were so many prisoners (he thought they numbered 15,000, not 78,000) and he had instructed that the prisoners receive decent treatment. The court refused to buy it: Homma, unlike Yamashita, had been in the immediate vicinity. All he had to do was keep his eyes open and see what was going on. He didn’t. This made him guilty of failing to provide even the barest minimum of troop supervision. Once again the U.S. Supreme Court ruled 6–2 not to intervene, and MacArthur made no move to reduce the verdict. (He did make one concession to Homma’s wife: He allowed the general to be shot rather than hanged.)
By these two trials MacArthur firmly established the principle of command accountability. On a battlefield this makes sense. But in a situation where the commanding general is far removed from the front and responsibilities are divided (as in the Yamashita case), the issue becomes murky. What about field generals who disobey written orders and conduct the actual atrocities? Is it fair to indict a senior commander if he did not order atrocities, did not know about them, or even lacked the means to stop them? By MacArthur’s logic, violations of the Hague Convention, the Geneva Conventions, and other international codes of warfare could be traced up to a high-level commander if such commander had responsibility and did nothing to cure these violations. This far-reaching doctrine was subsequently applied in the 1990s to dozens of trials in the international tribunal for the former Yugoslavia, and also adopted by the International Criminal Court in The Hague in 2002.
However, what might therefore be called the MacArthur principle of command accountability remains unresolved to this day, as demonstrated by My Lai in Vietnam and Abu Ghraib in Iraq. If MacArthur had been running the U.S. Army in 2006, presumably a top general would have been put on trial for not knowing what was going on at the Abu Ghraib prison.
MACARTHUR WAS NOT present at the prosecutor’s opening presentation. But his seven-year-old son, Arthur IV, was, eager to catch all the drama. The chief prosecutor, U.S. lawyer Joseph Keenan, strutted around the room, throwing thunderbolts. Referring to the Yamashita decision, he announced: “Individuals may be punished by a military tribunal for violations of international law, which, even though never codified by an international legislative body, have been sufficiently developed and crystallized to make them cognizable by courts of justice.” He continued: “The personal liability of these high-ranking civil officials is one of the most important, and perhaps the only new question under international law, to be presented to this tribunal.”
Not so, thought Japanese defense counsel Kenzo Takayanagi. A year later, when he finally got his chance to make the defense presentation, he said that any concept that crimes against peace incur personal responsibility is “perfectly revolutionary. . . . It is the general principle of the law of nations that duties and responsibilities are placed on states and nations and not on individuals.”
One can only imagine MacArthur’s reaction to such groupthink talk of personal immunity. The supreme commander took this trial very seriously. In his instructions to the American prosecutors, he insisted that no case be brought unless there was absolute confidence there would
be a conviction. He wanted this trial to be over in three months as everyone expected. He also wanted no embarrassing acquittals that would make the prosecutors look like fools. The accounts of Japanese atrocities in Asia and the Pacific were so abundant and self-evident that anyone would conclude beyond a shadow of doubt that these incidents were a pattern, not an aberration, and that Japan had engaged in a deliberate and consistent program of destruction and brutality.
MacArthur did have one concern, however, and it was a major one: that the emperor not be dragged into this trial. Back in mid-September 1945, Prince Naruhiko Higashikuni, a distant uncle of the emperor and temporary prime minister for fifty-four days, had given a press conference. “The most interesting questions,” said a New York Times editorial, “relate to the Emperor’s role at the outset of the war.” The newspaper was not about to let Higashikuni—much less his esteemed nephew—off the hook:
The Premier [Higashikuni] asserts that the Emperor was “deceived.” If so, it took the Emperor three and a half years and a complete Japanese defeat to discover the deception and to break with the deceivers. The Premier denies that the Emperor is a war criminal; even a negative association of the Japanese god with crime must set the Japanese thinking. But if he isn’t, he is at the very least an accomplice after the fact. And the accomplice is usually regarded as no less guilty than the original perpetrator.
Complicity would become a major issue in the Tokyo War Crimes Trial, formally called the International Military Tribunal for the Far East (IMTFE). The first count of the indictment read as follows: “All the accused . . . participated . . . in the formulation or execution of a common plan or conspiracy, and are responsible for all acts performed by any person in execution of such plan.”
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