The proceedings were held in the auditorium of the old Japanese War Ministry in the Ichigaya neighborhood of Tokyo. MacArthur never rejected any of the judicial nominees. These eleven judges thus represented the eleven-state membership of the FEC. He was compelled to return or chose to, because, according to Dower, his qualifications had been criticized to the United States in July and therefore resigned. Whenever Webb was absent—not an uncommon event—Cramer served as acting President.
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Japanese citizens and, at the request of the Japanese government to the USG, Americans, too, served as defense counsel. On April 29, Keenan and the ten associate prosecutors issued a joint indictment on behalf of all eleven states that had been at war with Japan and thus comprised the FEC.
Araki et al. Global Stud. Participant 37 None was acquitted. Three individuals were not sentenced: Two died during the trial, Matsuoka and Nagano died during the trial in and , respectively. See Brackman , supra note 41, at , See id.
On November 24, , MacArthur affirmed the convictions. Some of the convicted Japanese immediately filed habeas petitions with the U. Supreme Court. On December 7, exactly three years after Keenan arrived in Tokyo, the Supreme Court granted the motions thus staying the sentences. MacArthur, U. The Court denied the motions for jurisdictional reasons.
I have described elsewhere the main transitional justice options that are theoretically possible for confronting alleged atrocity perpetrators: inaction, amnesty, lustration, exile, assassination, prosecution, and various permutations of each. This Part summarizes what transitional justice options the Allied Powers—in particular, the USG—considered and then implemented for these Japanese.
In doing so, this Part compiles thematically the transitional justice decision-making that was presented chronologically in Part I—while adding discussion of some other decisions. Part II.
JPRI Occasional Paper No. 29
A describes the impact the existing and ongoing IMT precedent made on deliberations concerning Japanese. Parts II. B and II. C discuss the transitional justice options seriously considered and actually implemented for the primary and lower-level Japanese war criminals, respectively. President Gerald R.
United States, U. However, because the IMT set a precedent for prosecuting atrocity leaders through an international criminal tribunal established by executive fiat, there is little indication that the use of lethal force through extra-judicial summary execution i. As in the case of dealing with the principal Nazis, See id. Part I demonstrated that two transitional justice mechanisms USG officials seriously considered for addressing the principal suspected Japanese atrocity perpetrators—the designated Class A Japanese war criminals—were prosecution in an international criminal tribunal established through executive agreement and lustration.
For the Class A war criminals the USG and its allies decided to hold accountable through prosecution, the forum was a newly established, ad hoc international military tribunal created outside the UN through an executive order by MacArthur acting as the SCAP. See U. This tribunal had limited subject-matter crimes against peace, war crimes, and crimes against humanity , temporal crimes committed since , when Japanese assassinated Chang Tso-lin, a Chinese warlord , and personal major war criminals in the Far East jurisdiction. See Zachary D.
Unlike the case of the principal suspected Nazi atrocity perpetrators, See Kaufman Dissertation, supra note , at Japanese Emperor Hirohito, who was never taken into Allied custody, also was effectively extended de facto unconditional amnesty. The U. Joint Chiefs of Staff specifically ordered MacArthur not to attempt to apprehend Hirohito as MacArthur made efforts to capture individuals from whom a smaller group of people would eventually be tried before the IMTFE. John Ginn, who worked as a guard at Sugamo Prison during the trials, claims that there were originally eighty-four Class A war criminals held at the prison, from which the twenty-eight eventually tried were chosen.
Reports of General MacArthur
See Ginn , supra note , at The Allies, led by the USG, eventually released by December 24, and never held accountable the more than fifty Class A war criminals remaining, many of whom eventually returned to Japanese politics. The Allied Powers adopted a lustration policy, which MacArthur administered as the SCAP, which purged the principal Japanese war criminals, at least temporarily, from public office. The Class A war criminals not prosecuted were not permitted to immediately serve again in government. Some Japanese implicated in or convicted of atrocities, however, would later return to public life, even rising to prominent senior political roles.
The USG later would collaborate with many of these convicted or suspected war criminals in efforts to combat communism. The USG and some other Allies seriously considered and implemented at least five transitional justice options for addressing Japanese suspected of committing lesser atrocities: 1 prosecution in U. Those Japanese whom the USG and its allies decided to hold accountable were prosecuted through unilateral ad hoc Allied military tribunals options 1 and 2. Supreme Court option 3.
Many of these and other Japanese Class B and C war criminals also were the targets of lustration option 4. Others whom the USG did not hold accountable, including several thousand Japanese involved in medical experimentation, were effectively provided de facto conditional amnesty option 5 because the USG presumably would have revoked immunity had they not cooperated.
Although the decision was made to prosecute only some of the Class A war criminals before an international military tribunal, the USG addressed suspects of Classes B and C through an alternative transitional justice option. On September 12, , Truman ordered the U. Joint Chiefs of Staff to instruct MacArthur to try apprehended Japanese suspected of committing atrocities before unilateral ad hoc U. Through these tribunals, the USG tried Japanese, convicting of them; received death sentences.
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For a description and analysis of some of these trials, see Ball , supra note 17, at 74; Ginn , supra note , at 56—; Maga, supra note 5, at 1—33, 93— As such, the United States officially prosecuted more Japanese through bona fide trials than any other state. As historian Philip Piccigallo observes:. The Tokyo Tribunal, in short, was a constituent part of the entire Allied Eastern war crimes operation, albeit the most celebrated, longest, most discussed and, some felt, most important single component.
Some convictions before these ad hoc military tribunals achieved additional prominence when the affected defendants appealed to the U. Army —oversaw the commission of mass atrocities. Yamashita was subsequently categorized as a Class B war criminal for his alleged command responsibility during these offenses.
He was tried by an ad hoc U. Yamashita appealed his conviction to the U. Supreme Court, which heard his argument on January 7—8, He argued that the U. The Court rendered its judgment in the Yamashita case on February 4, , upholding the jurisdiction of the U. He was subsequently executed on February 23, after MacArthur decided not to exercise his authority to intervene.
Because the Yamashita case was the first war crimes trial charging a military officer who had not been accused of personally committing atrocities with a failure to exercise control over persons under his command who allegedly had perpetrated the underlying offenses, it established the U. Six other Allied states—Australia, China, France, the Netherlands, the Philippines, and the United Kingdom—also held their own unilateral ad hoc military tribunals. In total, between and , ad hoc Allied military tribunals tried approximately Classes B and C war criminals, convicting of them.
Of the remaining suspects, were acquitted and were either never tried or not sentenced. For a description of some of these Allied trials, see, e. Some of the Class B and C war criminals faced multiple trials. Minear , supra note 62, at 6 n. Approximately seventy-five percent of all of these defendants were charged with offenses against POWs. The unilateral prosecutions conducted by the Soviet Union are particularly noteworthy given how many were mostly show trials.
Occupation of Japan
The Soviet Union conducted these trials summarily, after which the Soviet government probably executed as many as Japanese. These trials were propaganda tools. As former U. Army attorney and legal academic Robert Barr Smith recounts:. The Russian trials were mostly pulpits for propaganda attacks on the West.
The USG offered immunity and other incentives—including money, food, and entertainment—to over Japanese government agents, physicians, and scientists involved in Japanese experiments performed during WWII on thousands of civilians and Allied soldiers, possibly including American POWs. The Japanese intended to transform the research from these experiments into biological weapons to attack the U.
After being granted immunity, some Japanese participants in these experiments assumed prominent roles—including senior positions in the health ministry, academia, and the private sector—in postwar Japanese society, allegedly with the assistance or at least knowledge of the USG. Through each of their conscious decisions not to hold alleged perpetrators accountable, the Allies, including the USG, provided de facto amnesty to thousands of Japanese suspected of direct involvement in some of the most horrific crimes of WWII, including those who participated in offenses allegedly planned and perpetrated against Americans.