Hirohito and the Making of Modern Japan (153 page)

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.
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A chamberlain alleges that on hearing the news of T
j
'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 T
g
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 K
iso 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 extensive.” 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.”
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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.”
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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 T
g
—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.
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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.

Serious errors of fact marred Pal's historical analysis of Japan's actions—the second element of his dissent. He asserted, for example, that Chang Tso-lin had not been assassinated by the Japanese military, and that the “Hull note” was an American ultimatum. “Even the contemporary historians,” he wrote, “could think that ‘[a]s for the present war, the Principality of Monaco [and] the Grand Duchy of Luxembourg would have taken up arms against the United States on receipt of such a note as the State Department sent the Japanese Government on the eve of Pearl Harbor.'”
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Pal contravened the political purpose of the trial and one of the occupation's main educational goals: namely, to make the Japanese people understand the criminality of war. Despite his professed intention, he ended up arguing the innocence of Japan and strongly endorsing the official Japanese view of wartime history.

Although CIE's “war guilt program” prohibited the publication in full of the dissenting opinions in the Tokyo trial, Judge Webb noted in open court the dissents by nearly half the judges on the tri
bunal.
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The independence of the foreign judges and the existence of minority verdicts impressed the Japanese public and contributed to acceptance of the trial results.

VII

The Tokyo trial, despite its defective procedures and complex political nature, had a deep, many-sided impact on the Japanese people and their view of the lost war.
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Some right-wing opinion was highly critical, resentful, and angry, and never reflected on Japan's aggression. Kishi Nobusuke, in his Sugamo Prison diary described the war crimes trial as a “farce” and devoted the rest of his political life to trying to undo its effects.
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Other rightists, feeling that Japan, stripped naked, had been shamed before the world, tried to ignore the trial, put it out of mind, block the transmission of any positive political and cultural lessons. Former conservative prime minister Ashida predicted that the trial would not cause great domestic repercussions.
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The Communists had been virtually the only ones vigorously to demand pursuit of war responsibility and harsh punishment for convicted criminals. But in academia, intellectuals of Marxist persuasion tended to dismiss the trial as a lost opportunity for deepening Japan's democratization, and as historically insignificant. The charter for the tribunal had been revised to allow heads of state to escape responsibility, they noted, and the judicial process had been corrupted by MacArthur's grants of total immunity to the emperor and the nation's business and financial leaders. Some Marxist historians also pointed out, correctly, that the Tokyo tribunal had promoted an elitist view of history insofar as it made the course toward war “pivot on the conflict between extreme militarists and moderate political leaders.”
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Outside the universities, however, according to American State Department and military intelligence reports prepared in November 1948, the majority of Japanese took a “passive” attitude toward the
Trial and the accused national leaders, but also felt they had received a fair trial under the circumstances.
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After the verdicts were handed down, popular reaction to the trial was expressed positively in continued efforts to reconstruct, improve, and make Japan a genuine “peace state.”

To this one may add: It is doubtful the defendants would have been treated as fairly if they had been judged in a Japanese court for defying the emperor's “spirit of peace” as envisioned in an undated document—a draft emergency imperial decree that provided for trials and the death sentence—found in the Makino Nobuaki papers and believed to have been written during the Shidehara cabinet.
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More important, the Tokyo trial was never a straightforward adversarial proceeding, pitting victors against vanquished. The charge of “victors' justice,” leveled most vehemently by Pal, was and remains extremely simplistic, and has impeded understanding of what really happened. The proceedings at Tokyo amounted, in fact, to a joint—American-Japanese—political trial.
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During its preparatory stage Hirohito and those closest to him participated behind the scenes, helping to select and influence the persons charged with war crimes. Imperial aides Terasaki and Matsudaira served as informants for members of the executive committee of the IPS, which drew up the list of indictees. So too did other members of the entourage, who sought to protect both the emperor and the senior statesmen. Palace aides and Foreign Ministry officials instructed the Class A suspects in Sugamo Prison on what to say; at the same time they cultivated relations with Keenan and many of the lawyers for both defense and prosecution.