III
During February and March 1946, while the Japanese public was learning about the new constitution, the work of the IPS continued. The executive committee of the IPS was composed mainly of “associate counsels” from each of the countries comprising the tribunal. Chaired by Chief Prosecutor Keenan and assisted by the most experienced lawyers on his staff, the IPS focused on interrogating and selecting those suspects who would be charged with “crimes against peace.” Thirty names appeared on the Class A suspects list compiled by American prosecutors, but only eleven on the British list; neither mentioned the emperor. The Australians, however, presented a “provisional list of 100” possible indictees, including Hirohito for “crimes against peace and crimes against humanity.” The Australians also furnished a detailed memorandum supporting the charges against the emperor. Never “at any time,” it stressed, was Hirohito “forced by duress to give his written approval” to any aggressive military action. The memorandum asked rhetorically, “[I]s his crime not greater because he approved of something in which he did not believe?”23
The executive committee whittled the number of indictees down to twenty-eight. Excluded, among others, was Ishiwara Kanji, the mastermind of the Manchurian Incident. Ishiwara had not been interviewed during the preparatory stage. His removal from the indictees list was probably owed to Keenan’s positive image of Ishiwara as one who had opposed Tj and tried to overthrow his regime. But it may also have reflected the American prosecutors’ mistaken belief that middle-echelon staff officers, like their American counterparts, were never prime movers in initiating aggression.24
In the end only twenty-six defendants were indicted. There were no businessmen, no university intellectuals, no Buddhist priests, no judges, and no journalists who had preached militarism and racial fanaticism. When the Soviet delegates tardily arrived on April 13, they tried to include three businessmen who had played leading roles in organizing the economy for war, but succeeded in adding only Gen. Umezu Yoshijir and diplomat Shigemitsu Mamoru. Former foreign minister Matsuoka Ysuke and former naval chief of staff Nagano Osumi died before the trial was concluded. One defendant—kawa Shmei—was declared mentally incompetent.
A serious distorting effect on the selection of the Tokyo defendants, and later on the trial itself, arose from the overwhelming U.S. military and economic domination of the Asia-Pacific region, and from MacArthur’s excessive power. But above all, distortions stemmed from the subordination of international law to realpolitik by all the Allied governments. Those governments tended to rank their national interests first, law and morality second. So did Hirohito and his advisers, working covertly behind the unfolding legal drama.
Thus the Soviet delegation, on instructions from Stalin, chose to follow the leader and call for Hirohito’s indictment only if the Americans did. The representatives of the only three Asian countries that participated in the tribunal—China, the Philippines, and India—also sought to avoid conflict with American policy as much as possible and to pursue their own lines of inquiry.
No country had suffered more from Japan’s aggression than China; and no Allied war leader understood the close connection between the Japanese monarchy and militarism better than did Chiang Kai-shek. But Chiang also believed Hirohito to be a check on the spread of Communism, and so opted not to indict. Although his own military courts indicted and tried 883 Japanese for war crimes in ten different cities, he did not accord high priority to the Tokyo trial. Chiang’s war with the Communists was about to resume. He needed American financial aid and military assistance, and hoped to persuade Japanese military personnel to stay on after surrender so that he could use them in his war against the Communists.
The small legal team Chiang dispatched to Tokyo reflected these priorities: one judge (Mei Ju-ao), one prosecutor (Hsiang Che-chun), and only two secretaries. Later Chiang sent more personnel and had materials collected pertaining to war crimes, but never enough to allow the Chinese to take the initiative. During the China stage of the prosecution’s case, in the summer of 1946, American prosecutors did the main work of investigating accusations of Japanese criminal behavior, Prosecutor Hsiang merely assisting. On the other hand Hsiang energetically probed the Nanking atrocities and the killing of civilians and disarmed soldiers in many other Chinese cities. He also presented evidence on the crime of rape, though without treating it as a crime against humanity.
Nationalist China chose not to hand over to IPS investigators the vast amount of data on Chinese war casualties that Chiang’s “Commission on Reparations” had been accumulating ever since 1938. Nor did it pursue Japan’s forced recruitment of civilian laborers, the “kill all, burn all, steal all” (sank sakusen) campaigns in North China, and the use of poison gas. These “crimes against humanity” (with the exception of the last) had taken place mostly in the Communist base areas, so Chiang Kai-shek was not interested in them.25 This may explain why Chiang’s chief of staff, Gen. Ho Ying-ch’in, treated Gen. Okamura Yasuji, architect of the liquidation campaigns, and Okamura’s subordinate officers “in and around Nanking…like honored guests instead of defeated enemies.”26 When a Chinese military court in Nanking convicted Okamura of war crimes in July 1948, Chiang protected the general, first ordering Okamura released so he could recover from tuberculosis in a Shanghai hospital, then allowing him to return safely to Japan. A year later, while GHQ turned a blind eye, the Nationalist high command, operating through their Tokyo mission, secretly enlisted Okamura’s services in recruiting high-ranking Japanese officers as military advisers to go to Taiwan and aid in the reconstruction of Taiwan’s armed forces.27
The Philippines had lost more than one million noncombatants and suffered enormous damage during the war. Most Filipinos held Hirohito responsible. The Philippine government nominated judge Delfin Jaranilla, a participant in the Bataan “death march,” as its representative on the bench, and later appointed Pedro Lopez as associate prosecutor. During the Philippines stage of the trial, Lopez introduced 144 cases of atrocities committed by Japanese forces against Filipino non-combatants and American and Filipino POWs, thereby laying a basis for later reparations claims. On the payroll of the American government, Lopez, like Jaranilla, never made an issue of Hirohito’s absence from the list of indictees.28
The Indian appointee to the court was sixty-year-old Radhabinod Pal of the High Court of Calcutta. Pal had been a supporter of the pro-Axis Indian nationalist, Chandra Bose, and a longtime Japanophile. Unlike most Indian elites, who condemned both British and Japanese imperialism and never embraced the ideology of the Greater East Asia Coprosperity Sphere, Pal was an outright apologist for Japanese imperialism. Arriving in Tokyo in May, he accepted his appointment under the charter in bad faith, not believing in the right of the Allies to try Japan, let alone judicially sanction it any way. Determined to see the tribunal fail from the outset, Pal intended to write a separate dissenting opinion no matter what the other judges ruled. Not surprisingly he refused to sign a “joint affirmation to administer justice fairly.”29
Thereafter, according to the estimate of defense lawyer Owen Cunningham, Pal absented himself for 109 of 466 “judge-days,” or more than twice the number of the next highest absentee, the president of the tribunal, Sir William Webb himself (53 “judge-days”).30 Whenever Pal appeared in court, he unfailingly bowed to the defendants, whom he regarded as men who had initiated the liberation of Asia. Pal, the most politically independent of the judges, refused to let Allied political concerns and purposes, let alone the charter, influence his judgment in any way. He would produce the tribunal’s most emotionally charged, political judgment. Many who repudiated the Tokyo trial while clinging to the wartime propaganda view of the “War of Greater East Asia,” believed that the main cause of Asian suffering was Western white men—that is, Pal’s “victors.” They would cite Pal’s arguments approvingly. So too would others who saw the war primarily in terms of the “white” exploitation of Asia.
Throughout the process of sele
cting among those accused, the prosecutors worked feverishly, their eyes peeled to the clock and to Nuremberg, fearing that world interest would vanish once the German trial of twenty-two major war criminals ended.31 Nuremberg was both their legal model and a source of psychological pressure. MacArthur, through Keenan, exerted pressure to wind up the preparatory stage and begin the proceedings. He denied the prosecution the right to interrogate Hirohito; he also determined that Hirohito would neither give testimony as a witness nor be asked to provide his diary or other private papers.
Diaries and prison depositions, both formal and informal, played a crucial role in the decisions to indict because so many of the incriminating Japanese documents had been burned or otherwise disposed of by cabinet decisions transmitted orally to avoid a written trail.32 Secret records of the Japanese armed forces were also hidden away. Most though not all of the depositions were completed by April 9—one week after Keenan had ordered them stopped. All deponents sought to protect Hirohito and to lay blame for the war on a very small number of army officers, singled out by name. Participating in the trial behind the scenes, through their depositions, the pro-Anglo-American “moderates” now took their revenge on the army elite for having lost the war. The senior statesmen, Adms. Yonai Mitsumasa and Okada Keisuke, who like others in the court milieu had served as informants for the prosecution, defended the navy, exaggerated the army’s influence, and minimized that of the emperor and his entourage.33
IV
On May 3, 1946, the trial opened in the large, newly renovated auditorium of the War Ministry Building in Ichigaya, near the center of Tokyo. Keenan had had this nerve center of Japanese militarism converted into a courtroom, refitted with dark wood paneling and a long, highly elevated mahogany bench for the judges. One microphone was provided solely for the use of the tribunal president. A witness box was set near the center of the room with tables and benches nearby for the lawyers and court stenographers. Carpenters built high lecterns for the chief prosecutor and chief defense counsel, and platforms for the Allied movie cameramen and still photographers who filmed the entire proceeding. Special galley areas were set aside for the domestic and foreign press, radio broadcasters, and some thirty translators who worked in the two official languages of the trial, English and Japanese.34 Seats in the rear upper balcony accommodated 660 spectators, while first-floor seats increased the total to nearly 1,000. Clerks moved around the courtroom with traveling microphones, and large klieg lights, hung from the ceiling, brightly illuminated the whole scene.35
Three days later, at the third open session, defendants, judges, lawyers, white-helmeted military policemen, and hundreds of diplomats and journalists from all over the world packed the courtroom at 9:15 A.M. to hear the pleas of the defendants. First the defense lawyers were introduced, then a dispute arose over a mistranslation in the indictment. Once that was cleared up, the indictees, starting with Araki Sadao, stood up as their names were called in alphabetical order. All pleaded not guilty to each and every charge. A show trial in the best pedagogical sense—that is, a major criminal trial intended to teach not lies, as in Stalin’s show trials, but positive lessons about the criminality of war—was now off to a slow start, with the courtroom packed and the Japanese nation looking on, still in the middle of a food crisis.
The prosecution team presented its case in phases over a period of nearly eight months, starting with Keenan’s dramatic opening statement on June 4. The Tokyo tribunal was trying men who had “declared war upon civilization” itself, and should therefore be viewed as part of a just “battle of civilization to preserve the entire world from destruction.” He then proceeded to outline the theory of the prosecution.36 Thereafter the prosecutors daily introduced treaties, agreements, and other documents in order to establish what American and Japanese foreign policies had been. The prosecution called 109 witnesses who testified orally, and entered written testimony (in the form of statements, affidavits, and interrogations) from 561 others. Step-by-step the evidence against the accused accumulated. The first story to emerge was of Japan’s preparations for war through propaganda, censorship, and centralized educational indoctrination; next the narrative of its conduct of aggressive wars was constructed, with the spotlight on the war crimes of the imperial forces in different countries.
As early as the second week, American defense attorney Maj. Ben Bruce Blakeney challenged the participation of the Soviet judge on the bench because the Soviet government had earlier been expelled from the League of Nations for its limited war of aggression against Finland. The defense had raised the issue of Allied behavior in the just-concluded era of global repartition (1938–45); thereafter it began raising tu quoque (“you did it too”) arguments, intended to weaken the accusations of the prosecution without actually refuting them. On each occasion the bench rejected them—in effect telling the defense which acts of violence were “aggression” and war crimes and which were not.
On June 13 the Australian associate prosecutor, Alan Mansfield, introduced documents that clarified both the various Hague treaties to which Japan had been a party, and the Japanese political and bureaucratic systems. The life history of each defendant was read out, and the prosecutors summarized how the war was prepared. Japanese witnesses Shidehara Kijr and Wakatsuki Reijir, among others, described a virtually autonomous army, a “police state,” and the ethos that informed its politics during the 1930s. The impression deepened that the “militarists” had staged “incidents,” challenged the authority of successive cabinets, and gradually consolidated power. But whenever the question arose of who was constitutionally and morally responsible for the army high command, no answer could be given, for Hirohito was being kept “hidden behind a Shji screen.”37
After a short summer recess, during which air-conditioning was installed in the courtroom, the tribunal reconvened and began hearing testimony on Japanese aggression in China, starting around the time of the Manchurian Incident. On June 27, Inukai Takeru, the son of assassinated prime minister Inukai Tsuyoshi, took the witness stand for the prosecution. In giving evidence, he made a direct and unexpected reference to Hirohito, claiming that his father, for whom he had worked as secretary, had been granted an audience at which he had asked the emperor directly to order the army to withdraw from Manchuria. Rather than state outright that the emperor refused, Inukai declared that the prime minister “failed to achieve his aim.” In later cross-examination of Inukai, Hozumi Shigetaka, lawyer for defendants Kido and Tg, asked why the emperor had not granted Prime Minister Inukai’s request for an imperial rescript ordering the army out; furthermore, whether read in English or Japanese, the witness’s “statement can be taken to mean that the emperor had responsibility for the expansion of the Manchurian Incident.”38 Inukai tried to correct his statement, but the bench had been stirred by the dramatic, unexpected way in which responsibility had been attributed to the emperor.
The next day Webb informed the court that some of the judges “would like to hear the witness make a fuller statement on the emperor’s position to clear up a contradiction, if there be one, in his own evidence.” Inukai partially retracted his previous day’s statement by saying that when he and his father spoke of “withdrawal from Manchuria” they meant the ordering of the Korean Army back to Korea, and the Railway Garrison troops back to the railway zone. Ultimately Inukai failed to clear up the contradiction, however.39 Seven months later, when the prosecution completed its narrative of the conspiracy and closed its case, the question of Hirohito’s role in events hung like a cloud over the proceedings. Not a single defendant had dared to discuss his war responsibility.
V
The defense took eleven months trying to establish the nonculpability of each accused—most of 1947, longer than the entire first Nuremberg trial. It presented, in addition to the defendants, 310 witnesses and written testimony by 214 others. The defense generally followed Japanese wartime propaganda in explaining why Japan had gone to war against the United States and Britain, and m
ade use of numerous postwar writings critical of Roosevelt’s foreign policy.40 When the defense concentrated on justifying Japan’s actions in China and the Pacific, the prosecution pointed to the many gross errors of fact that riddled the defense presentation. The tribunal ruled again and again that the bulk of the defense material was irrelevant or immaterial. Rejected documents included details of Japan’s efforts to counter Soviet communism in Asia and the U.S. congressional investigations of the Pearl Harbor attack. When attorney Blakeney attempted to submit a summary of former secretary of war Stimson’s account of the decision to drop atomic bombs on Japan, the tribunal, by majority, rejected that as well. Rebuttals and summations by both sides went on through the winter and spring of 1948.41
The American and Japanese defense lawyers performed badly from the outset. In the words of leading defense lawyer and former member of the Diet Kiyose Ichir, they tried “to disprove each and every charge of criminality lodged against” their clients but were unable to agree on a common strategy.42 Kiyose’s long opening statement made the point that war atrocities “alleged to have been committed against the Jews in Germany [were] never present in Japan, [and] we are prepared to produce evidence to explain the difference between the war crimes of Germany and the alleged acts of the accused.”43 Next, defense lawyer Takayanagi Kenz rose and attacked the legitimacy of the charter. A succession of Japanese senior army officers, some under investigation as possible war criminals themselves, were called as witnesses for the defense. Many defense attorneys claimed their clients had acted under superior orders and/or had fought to stop the spread of Communism in Asia. Many referred to the “Hull note,” a term introduced into the Japanese lexicon during the trial and charged with malevolent connotations ever since. The real villain, they insisted, had been the United States, which had forced Japan into a war of “self-defense.” The defense lawyers also pursued delaying tactics, hoping that the worsening ideological conflict between the United States and the Soviet Union would help Japan’s militarists to make their case.
Hirohito and the Making of Modern Japan Page 61
