The highlights of the defense phase were the testimonies of ex–Privy Seal Kido, ex–Foreign Minister Tg, and General Tj. In cross-examination by Chief Prosecutor Keenan, all three inadvertently drew in the absent emperor.
During Kido’s first two days on the witness stand, October 14–16, 1947, his defense lawyer, William Logan, read out the entire 297-page English text of his lengthy deposition, omitting nothing despite Keenan’s complaint that it duplicated court documents. When Logan finished, ten lawyers questioned Kido in turn for nearly five days. Then Keenan began several days of cross-examination, designed to establish that “from the beginning of [Kido’s] political career until the surrender of Japan,” he had (in Keenan’s words) “constantly opposed any movement upon the part of the Emperor…in a practical way to bring about law and order…and stop the rule of lawlessness and violence….”44 Using the diary of Harada Kumao to question assertions in Kido’s diary, Keenan showed that Kido had gone along with, rather than fought against, the militarists during the China war; despite his claims of having had nothing to do with politics, Kido had exercised enormous political power behind the scenes.
The chief prosecutor also charged Kido with constantly shifting blame onto his friends: Harada and Konoe—both conveniently deceased—and the elderly Makino Nobuaki. On the twenty-third several tense exchanges ensued between Keenan and Kido: focusing on what had been Hirohito’s authority in military and diplomatic affairs on the eve of the Pearl Harbor attack, and on Kido’s advice to the emperor, including his role in the making of the Tripartite Pact; his recommendation of Tj as prime minister, and his handling of President Roosevelt’s last-minute letter to the emperor.45 By the time Kido left the stand, the emperor’s war responsibility was again at issue.
In late December 1947 former foreign minister Tg took the witness stand and drew national attention by declaring that Tj, Shimada Shigetars, and Suzuki Teiichi had been the main advocates of declaring war in 1941. More important, Tg also claimed, on December 26, that Secretary of State Hull had demanded an immediate and complete withdrawal of all Japanese military and police forces from China and French Indochina.
Not only that, the Hull note…demanded that we withdraw from the Manchurian area as well, which would have immediately affected Korea, causing us to withdraw from there also. Stated differently, I can boldly state our external situation would have been the same as we face right now…. In sum, the Hull note demanded that Japan return to [its] pre-Russo-Japanese War situation. This would have been suicidal for Japan in East Asia. If we had done so, then economically we would have been unable to exist.46
Tg implied that the government was forced to opt for war after it had carefully studied the “Hull note.” In fact there was (and is) no record of such an examination. What Tg sought to obscure in addition to the professional incompetence of his Washington diplomats, was that Hull had never challenged Japan’s continued control of Manchukuo; and that he, Tg, might have, but did not, insist on postponing war with the United States at that time by making Hull’s document a focus for negotiations.
When General Tj took the stand on December 27, 1947, both GHQ’s and the Japanese government’s lobbying campaign to protect Hirohito shifted into high gear. The Asahi shinbun gave most of its front page to Tj’s testimony. Its headline that day read, “The Emperor Bears No Responsibility. [Tj] Insists Adamantly That It Was a War of Self Defense.”47 Three days later, on December 30, after his American lawyer had read into the record excerpts from his earlier depositions, Tj defended not only the emperor but the entire Japanese political process leading to the decision for war in December 1941. Japanese politics had not undergone any reactionary transformation, he insisted, but had remained government-as-usual-under-the-Meiji-Constitution. All Japanese war atrocities were accidental; neither ideological indoctrination nor the ethos that informed the armed forces had anything to do with them. Addressing the Japanese public at large, rather than the courtroom audience, Tj depicted himself as an aggrieved victim. He denied that aggressive war was a crime and declared:
I insist that right up to the very end this was a war of self-defense and did not violate international law as understood at that time. I have never imagined, not even to this day, that as an official and an individual of a defeated nation I would be indicted by the victors and accused of being a violator of treaties and a criminal under international law because my country fought this war.
Tj then cleverly displaced his and the emperor’s responsibility for starting the war behind the very different responsibility for losing it. The defeat had occurred during the last year and a half of the war, when Tj was out of power. On the stand he was magnanimous: “The second problem is my responsibility for the defeat as the prime minister at that time. In this sense, I not only accept my responsibility, but from the bottom of my heart I am happy to bear it.”48
Tj’s performance evoked strong emotions and helped to restore his standing among those who were hostile to the tribunal and wanted to see at least one of the accused stand up as a model of loyalist behavior. Keenan’s response was ineffective. The next day, however, under questioning by Kido’s American defense attorney, William Logan, Tj created a stir by inadvertently and indirectly implicating the emperor.
Logan: Do you remember even one example where Kido proposed something or acted against the emperor’s wish for peace?
Tj: So far as I know, such an instance never arose. Not only that, no Japanese subject, let alone a high official of Japan, would ever go against the will of the emperor.49
Tj’s slip, undermining the argument that Hirohito bore no responsibility for the decision to start the war, was immediately pointed out to the prosecution by tribunal president Webb. It could not be ignored. One of Hirohito’s close aides immediately sent word to Kido in Sugamo prison to get Tj to correct his error. With the help of Chief Counsel Keenan, Tj did so the next time he took the stand, January 6, 1948. Nevertheless, more damage had been done: the prosecution’s evidence and Tj’s testimony had once again implicated the emperor who was not on trial.50
VI
The threat of forced abdication had hung heavily over Hirohito before, during, and long after the war crimes trial. The danger came from his immediate family members who wanted to have a voice in political affairs, and from all who believed that there are moral standards applicable only to leaders of nations.
Prince Takamatsu was one of several family members who wanted Hirohito out. About a year after Japan’s formal surrender, on September 20, 1946, he confided to his diary that it was unwise for the emperor to remain on the throne simply because he had accumulated years of experience as monarch or because his abdication would disturb MacArthur.51 Anticipating a regency but unable to openly promote his own candidacy, he endorsed the idea of Chichibu as regent. Earlier, on September 30, 1945, he had written that Prince Chichibu’s return to the capital after a long convalescence “means he will meet people and when the time comes he could become regent.”52 Takamatsu, clearly believing Hirohito was not licensed to stay on the throne permanently, maintained a steady stream of criticism of him. Other family members, such as Princes Mikasa and Higashikuni, also supported early abdication.
Soon several prominent intellectuals, such as the liberal philosopher Tanabe Hajime, publicly called on Hirohito to “muster the courage to express a more sincere sense of responsibility” by abdicating.53 The president of Tokyo Imperial University, Nambara Shigeru, also asked him to step down. Among the first to state the moral case against the emperor from the standpoint of soldiers who had laid down their lives for him in battle was the famous poet Miyoshi Tatsuji. There will “be no morality in the world” unless the emperor abdicates “as quickly as circumstances permit,” Miyoshi declared in a series of influential articles during the spring and into early summer of 1946:
As the head of state, his majesty must take primary responsibility for this defeat…. The emperor bears responsibility for being extremely negligent in the perfor
mance of his duties. He permitted the violent behavior of the military cliques and for many years did not do what he should have done. His loyal subjects trusted him as a benevolent father, as in the phrase “the children of the emperor.” They believed that as emperor he was the supreme commander of the emperor’s military; they obeyed military regulations posted in his name; and they died in battle shouting, “His Majesty the Emperor, Banzai!” Yet the emperor lamented, “The army is a nuisance….” It is the emperor who is guilty for betraying the loyal soldiers.54
Vice Grand Chamberlain Kinoshita Michio rightly perceived the long-term nature of this threat. In an unsigned, undated memorandum in his diary, probably written in early spring 1946, on Imperial Household Ministry stationery, Kinoshita (or someone who shared his ideas) wrote that even though the United States and MacArthur had decided to maintain the monarchy,
as the war crimes trials go forward, the problem will arise of whether to retain the present emperor or install a successor. I am sure [the United States and General MacArthur] anticipate all-out resistance from the Japanese people if they call for the abolition of the emperor system. But they probably don’t anticipate similar resistance to a call for abdication of the current emperor and enthronement of a new one. Depending on the circumstances, they may begin to advocate this. We will have to be prepared.
It is vital of importance not to allow them to talk about the abdication of the emperor. The way to do that is to plant the impression that, for the United States, the present emperor is the most desirable, trustworthy person to be in control of Japan and also [the most reliable person] in international relations, particularly in the Orient.55
By July 1946 even Hirohito’s most enthusiastic defender in GHQ, General Fellers, was urging him to repent to the nation in the interest of preventing long-lasting harm to the monarchy.56 Meanwhile, Kido, in detention at Sugamo Prison, mulled over the question of Hirohito’s war responsibility but put off recommending abdication until his own ordeal and the occupation itself had ended.
On November 4, 1948, around the time the Communist armies of Mao Tse-tung captured Mukden and Stalin was challenging the “Truman Doctrine” by blockading Berlin, the Tokyo trial drew to a close after a six-month recess.
Judge Webb read out in open session the majority judgment, but first reviewed the law of the Charter—issued and later amended by MacArthur—which defined three broad categories of crime.57 The initial category was “the planning, preparation, initiation or waging of a…war of aggression, or a war in violation of international law, treaties, agreements…or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” Following Nuremberg precedent, the waging of such a war was termed “crimes against peace.” During the trial it had denoted mainly violations of the Covenant of the League of Nations, the Nine-Power Treaty concerning the sovereignty, independence, and territorial integrity of China, and the Kellogg-Briand Pact renouncing war of aggression as an instrument of national policy. Unlike conventional war crimes, “crimes against peace” could be committed only by policy makers.58 The prosecution had argued not that aggressive war per se was illegal but only that every act of aggressive war with which Japan was charged was covered by treaties to which Japan was a party. Because pursuit of this charge had forced the prosecutors to investigate the causes of the Asia-Pacific War, a hornet’s nest of unresolved historical debate had opened, particularly after the defense was not allowed to introduce in evidence documents having to do with communism in Asia. On the other hand, neither at Nuremberg nor Tokyo were death sentences handed down solely on the basis of “crimes against peace.”
The second, less controversial category of offense was “violation of the laws or customs of war.” This offense was based upon the Hague and Geneva Conventions on the laws of land warfare and the treatment of prisoners of war, respectively. Both had come to be recognized as customary law embodying minimum standards of humane conduct, applicable to all states engaged in international armed conflict. Defense attempts to rebut charges of “violations of the laws and customs of war” invariably fell flat in the face of the enormous evidence the prosecution marshaled to prove Japanese criminality in the prosecution of war.59
“Crimes against humanity” was the third category. The term (which had first emerged in World War I in connection with Turkish atrocities against Armenians) was defined exactly as in the four-nation London Charter on which the IMT at Nuremberg was based. It denoted “murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds….” These crimes, mainly against the civilian population, “were punishable under international law only insofar” as they were committed in connection with war crimes. At Tokyo the prosecutors, following the fifty-five count indictment, highlighted the catchall crime of murder taken broadly “as resulting from illegal warfare confined to aggressive attacks or in violation of treaties when the nations attacked were at peace with Japan.”60 “Murder” so taken was an enormous umbrella that could and did cover both the Japanese attack on Pearl Harbor and the “rape of Nanking.”
Judge Webb went on to discuss the conduct of the trial and the facts of the individual cases. Though the tribunal found the Japanese army guilty of usurping power by intimidation and assassination, it exonerated the Japanese people for the behavior of their armed forces. It also greatly reduced the number of counts in the original indictment that were considered to have been proved. Webb concluded by summarizing the majority view “that the charge of conspiracy to wage [a succession of] aggressive wars has been made out…these acts are…criminal in the highest degree.”61
He then handed down guilty verdicts on all twenty-five principal defendants. Tj received the death sentence, along with five other generals: Itagaki Seishir, Kimura Heitar, Doihara Kenji, Matsui Iwane, and Mut Akira. One civil official, former diplomat and prime minister Hirota Kki, was also sentenced to die. After MacArthur had dismissed all appeals for a stay of execution, seven of the defense lawyers appealed to the U.S. Supreme Court. Their ground was constitutional: The Tokyo tribunal was really an American court established without the consent of Congress; it had derived, from and been conducted entirely on the basis of, President Truman’s executive powers. Shortly before the Justices heard their “appeal,” an angry MacArthur told British representative Alvary Gascoigne, that even if the Supreme Court issued a writ of habeas corpus, he would “ignore it” and “entrust the matter to the Far Eastern Commission.”62 On December 15, the day before the case was argued at the Supreme Court, the Far Eastern Commission hastily announced that the tribunal “is an international court appointed and acting under international authority.”63 Five days later the Court ruled that it had no power or authority to set aside the sentences.
The defense lawyers had sought to highlight the political nature of the Tokyo tribunal. They succeeded only in revealing its complexity, and emphasizing the dual, ambiguous nature of MacArthur’s authority. The Supreme Commander now went ahead and ordered the seven executed by hanging. Their bodies were then cremated and most of their ashes scattered at sea in the mistaken belief that this would prevent them from someday being enshrined as martyrs.64 A chamberlain alleges that on hearing the news of Tj’s death, Hirohito went into his office and wept.
Sixteen defendants, including former privy seal Kido and former prime minister Hiranuma, received life imprisonment. Ex–Foreign Minister Tg received twenty-five years’ confinement while diplomat Shigemitsu Mamoru, not regarded as one of the main persons responsible for starting the war, received seven years for having participated as foreign minister in the Kiso cabinet and for having made no effort to stop the mistreatment of prisoners of war.
In his own separate, concurring opinion, Webb agreed in general with the verdict of the majority but felt that the Japanese accused should be treated with more consideration than their German counterparts, whose “crimes were far more heinous, varied and exte
nsive.” Webb saved his sharpest criticism for the total immunity given to the emperor. Firmly rejecting the defense of duress, he declared: “No ruler can commit the crime of launching aggressive war and then validly claim to be excused for so doing because his life would otherwise have been in danger.”65
Judge Henri Bernard of France wrote a dissenting opinion which also brought in the emperor. Japan’s declaration of war, he concluded, “had a principal author who escaped all prosecution and of whom in any case the present Defendants could only be considered as accomplices.”66
Judge B. V. A. Röling of the Netherlands found nothing objectionable in Hirohito’s immunity, for he believed him to have been a complete figurehead. Röling based his dissent instead on the imperfections of the charter, whose validity he had questioned from the outset. He rejected the notion of “aggression” as a crime under international law, and felt that four of the defendants—Kido, Hata, Hirota, Shigemitsu, and Tg—should have been acquitted.
Judge Pal completed his dissenting opinion in early August, and asked Webb to have the entire text read in open court, according to Indian practice. The majority voted to have only its existence announced, which Webb did on the day of sentencing, November 12.
Pal’s judgment, declaring all the defendants innocent on all charges, was unique, in no way representative of the Indian or any other Asian government.67 From the standpoint of legal theory, he denied (as did Röling, whose views were close to his) the criminality of launching and waging war as a sovereign right of the state. The international legal order as it had existed in the nineteenth century could not be developed and expanded; the concept of “aggression” remained legally undefined. The Nuremberg and Tokyo tribunals, having exceeded the framework of international law as it existed before World War I, were illegal. Ergo the defendants were not in violation of law.
Hirohito and the Making of Modern Japan Page 62
