2.2 THE INTERNATIONAL MILITARY TRIBUNALS AT NUREMBERG AND IN THE FAR EAST
2.2.2 The International Military Tribunal for the Far East (IMTFE)
The IMTFE, also known as the Tokyo Trial, was established to try war criminals, either individually or those who were members of organisations or in both capacities, with offences which included crimes against peace.200 Whilst the war criminals prosecuted at the IMT were from Europe, those prosecuted at IMTFE were Japanese top military, political and diplomatic leaders.201 Its establishment flowed from the implementation of the Cairo Declaration of
194 Jackson Moogato ‘The work of national military tribunals under Control Council Law 10’ in Jose Doria et al (eds) The Legal Regime of the International Criminal Court, Essays in Honour of Professor Igor Blishchenko (2009) 51. Bassiouni ‘From Versailles to Rwanda in seventy-five years’ at 29. Control Council Law No. 10, was the governing instrument to try those who had committed crimes of a lesser degree in the ‘European theatre’. Other military tribunals to try minor axis criminals were also established in the ‘Asia-Pacific theatre’. Sellers ‘The prosecution of sexual violence in conflict’ at 8.
195 Ibid.
196 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, art II(1)(c).
197 Copelon ‘Surfacing gender’ at 244. Rhonda Copelon ‘Gender crimes as war crimes: Integrating crimes against women into international criminal law’ (2000-2007) 46 McGill Law Journal. 217 at 221. Campanaro ‘Women, war and international law’ at 2565 (stating that rape was not included as a crime in the indictments, even though there was substantial evidence of sexual abuse. This she states proves the lack of recognition given to sexual violence).
198 Askin ‘Prosecuting wartime rape and other gender-related crimes’ at 302.
199 Sellers ‘The prosecution of sexual violence in conflict’ at 8.
200 Ibid. Whilst rape was hardly prosecuted in the ‘European theatre’, this can be compared with the Asia- Pacific theatre where rape was prosecuted as a war crime. See also Charter of the International Military Tribunal for the Far East, Dated at Tokyo January 19, 1946, amended April 26, 1946, TIAS 1589: 4 Bevans 20, arts 1 and 5. At the IMT individual persons and organisations were tried but the IMTFE Charter made no provision for the trial of organisations alleged to be criminal.
201 Charter of the International Military Tribunal for the Far East. Askin War crimes against women at 165.
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December 1, 1943,202 the Potsdam Declaration of July 26, 1945,203 the Instrument of Surrender of September 2, 1945,204 and the Moscow Conference of December 26, 1945.205 At the Moscow Conference, held between 16 and 26 of December, 1945 the governments of the United States, Great Britain and the Union of Soviet Socialist Republics (Soviet Union) agreed inter alia, with the concurrence of China, that the orders for implementation of the Terms of Surrender, the occupation and control of Japan and directives relating thereto should be issued by the Supreme Commander of the Allied Powers.206 Based on this power, General Douglas MacArthur by Special Proclamation established the IMTFE, on January 19 1946.
The IMTFE Charter (modelled after the IMT Charter) was issued on the same day as the Proclamation. It was amended on 26 April, 1946 to include the addition of two judges, from India and the Commonwealth of the Philippines, to the nine originally chosen.207 The provision for two judges from Asia was to give that region the opportunity to judge the Japanese for the
202 The Cairo Declaration was a document made by the United States President, Franklin Roosevelt, the British Prime Minister, Winston Churchill and the President of the Republic of China, Chiang Kai-shek following the Cairo Conference which was held in Cairo, Egypt. Some of the provisions in the Declaration were that the three Allied nations would continue to wage war against Japan until it surrendered unconditionally, that Japan would be stripped of all the Pacific islands seized or occupied since the beginning of World War I, the return to China of territories such as Manchuria, Formosa, and the Pescadores and Korea’s freedom and independence from Japan.
International Military Judgment of 4 November, 1948.
http://crimeofaggression.info/2013/01/international-mi (accessed 14 January 2015).
203 The Potsdam Declaration, also referred to as the ‘Proclamation Defining Terms for Japanese Surrender’, is a statement, (made by the same Allied powers) calling for Japan’s surrender, the punishment of all war criminals. It was subsequently adhered to by the Union of Soviet Socialist Republics (Soviet Union). Paragraph 8 reference states that the terms of the Cairo Declaration should be carried out. When Japan failed to surrender, Harry S. Truman who had now become the President of the United States, ordered the atomic bombing of Hiroshima and Nagasaki, two of Japan’s cities. This order was carried out on the 6 and 9 August 1945. Potsdam Declaration
www.princeton.edu/-achaney/tmve/wik/100k/.../potsdam_Declaration.ht... (accessed 14 January 2015).
204 This was the instrument by which Japan surrendered to the four Allied powers and commanded all its forces to cease hostilities, thus bringing World War II to an end in the Asian Pacific region. It was signed by behalf of the Emperor of Japan, the Japanese Government and the Japanese Imperial General Headquarters and also on behalf of the same nine Allied Powers. International Military Judgment of 4 November, 1948. First Instrument of Surrender, 2 September 1945
www.taiwodocuments.org/surrender01.htm (accessed 14 January 2015).
205 Ibid.
206 Ibid. Communique on the Moscow Conference of the three foreign ministers, signed at Moscow on 27 December 1945, and report of the meeting of the ministers of foreign affairs of the Union of Soviet Socialist Republics, the United States and the United Kingdom, dated 26 December 1945, together constituting an agreement relating to the preparation of Peace Treaties and to certain other problems available at www.ungarisches- institut.de/dokumente/pdf/19451227-1.pdf (accessed 14 January 2015).
207 The nine judges came from those countries which were the signatory powers that signed the Instrument of Surrender of September 2, 1945. The judges from the United States and France were replaced as the original ones resigned.
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brutal atrocities it suffered under them.208 Critics of the IMTFE have noted America’s domination over the trial and other aspects relating to the IMTFE.209 Also, it was considered to be out of place for colonial nations such as France, Britain and the Netherlands to judge Japan for its colonial ambitions.210 In their opinion, there should have been more judges from Asia, including Korea, which had been ‘brutally’ colonised by Japan for over 30 years.211 In his judgment and subsequent article, Justice Bert Röling, one of the judges who presided over the trial, said the judges should have come from neutral countries and from Japan, as their presence
‘would have had a favourable influence’.212
The crimes within the jurisdiction of the IMTFE; that is, crimes against peace, crimes against humanity and conventional war crimes, though similarly titled to those contained within the IMT Charter, are worded differently in some respects. 213 The 28 selected Class A war criminals214 were indicted on 55 separate counts (as opposed to the IMT which had four counts),
208 Allison M Danner ‘Beyond the Geneva Conventions: Lessons from the Tokyo Tribunal in prosecuting war and terrorism’ (2005-2006) 46 Virginia Journal of International Law 83 at 89. Maria H Chang and Robert P Barker
‘Victor’s justice and Japan’s amnesia: The Tokyo war crimes trial reconsidered’ (2001) 19 East Asia 55 at 73.
209 Ibid. Idem at 63.
210 Ibid.
211 Chang and Barker ‘Victor’s justice and Japan’s amnesia’ at 73.
212 Justice Bert Röling was from The Netherlands. His comment was with regard to the Nuremberg and Tokyo Tribunals. He was also of the opinion that the same should have applied in the case of the Nuremberg trial, that is, the appointment of neutral judges at Nuremberg and also from Germany. Bert V A Röling ‘Aspects of the criminal responsibility for violations of the laws of war’ in Antonio Cassese (ed) The New Humanitarian Law of Armed Conflict (1979) at 200. Onuma Yasuaki ‘The Tokyo Trial: Between Law and Politics’ available at www.olemiss.edu/courses/inst203/onuma86.pdf (accessed 15 January 2015).
213 Under article 5(a), crimes against peace is defined as ‘the planning, preparation, initiation or waging of a declared or undeclared war or aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’. Article 5(b) defines conventional war crimes as ‘violations of the laws or customs of war.’ Article 5(c) defines crimes against humanity as ‘murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices in the formulation or execution of a plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan’ – article5 of the Charter of the International Military Tribunal for the Far East Charter. The phrase ‘against any civilian population’ was deleted from the definition of crimes against humanity in the IMTFE Charter, while the phrase exists in the IMT Charter on which it was modelled. Askin states that this broadened the classes of crimes which might be punished. See Askin War crimes against women at 166.
214 Selected from 80 war criminal suspects, including nine civilians and 19 soldiers. Askin quotes Minear on the criteria for selecting the defendants, that the group of accused represent branches of the Japanese Government and were ‘principal leaders’ in the various phases of the period covered by the indictment; with ‘primary responsibility’
for the acts committed and against whom there were ‘overwhelming cases’. Idem at 169 citing Richard H. Minear 1971 ‘Victors’ justice: The Tokyo War Crimes Trial’ at 10-11.
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between the periods of 1 January 1928 and 2 September 1945.215 Due to the complexity of these counts they were grouped into three: crimes against peace (Group I: counts 1–36); murder Group II: counts 37–52) and conventional war crimes or crimes against humanity (Group III: counts 53–55).216 The trial which commenced on 3 May 1946 was factually gruesome and finally ended on November 4, 1948, taking two and a half years to complete.217 At the end of the trial 25 of the 28 war criminals were convicted and sentenced.218 Seven of them were sentenced to death by hanging, 16 to life imprisonment, and a number of others were imprisoned for 20 years. The last category of those tried was sentenced to seven years imprisonment.219
Gender specific sex crimes were committed by the Japanese during World War II.
Although the Charter did not specifically list rape as a crime, some of the defendants were charged with other crimes along with rape under the category of war crime.220 Yet, scholars have pointed to the fact that, like its counterpart, the IMT, the IMTFE ‘largely neglected sexual violence’,221 or failed to adequately prosecute it and other sexual violence crimes.222 In
215 International Military Tribunal Judgment of 4 November, 1948.
216 International Military Tribunal for the Far East. Dissentient Judgment of Justice Pal, Kokusho – Kankokai, Inc., Tokyo, 1999 available at www.cwporter.com/pal1.htm (accessed 15 January 2015). Caroline J K S Picart
‘Attempting to go beyond forgetting: The legacy of the Tokyo International Military Tribunal and crimes of violence against women’ (2012) 7 East Asia Law Review 1 at 24.
217 The President of the Tribunal, Justice Webb, who was from Australia, had explain why the trial was lengthy, in conflict with the spirit of the provisions of articles 12(a) and (b) of the Charter, which provided for the trial to be confined to an ‘expeditious hearing of the issues raised by the charges’ and without ‘any unreasonable delay’.
[emphasis added] International Military Tribunal judgment of 4 November, 1948.
218 Two of the defendants died during the trial and proceedings were suspended against another declared mentally unfit to stand trial (released in 1948). International Military Tribunal Judgment of 4 November, 1948.
219 Three of the defendants who were sentenced to life imprisonment died in prison between 1949 and 1950. The remaining 13 prisoners were granted parole between 1954 and 1956. Of the two prisoners who had lesser sentences, one died in prison and the other was granted parole in 1950 and became the Foreign Minister of Japan in 1954. See U S Department of State Office of the Historian, The Nuremberg Trial and the Tokyo War Crimes Trials (1945- 1948).
220 Askin ‘Prosecuting wartime rape and other gender-related crimes’ at 302. Meron ‘Rape as a crime under international humanitarian law’ at 87 (stating that those defendants who were prosecuted for war crimes which included rape were found guilty because they failed to ensure that their subordinates did not contravene international law. By including rape with other crimes in the indictment, the indictment contemplated acts ‘carried out in violation of recognised customs and conventions of war . . . murdering, maiming and ill-treating prisoners of war (and) civilian internees . . . forcing them to labour under inhumane conditions . . . plundering public and private property, wantonly destroying cities, towns and villages beyond any justification of military necessity, (perpetrating) mass murder, rape, pillage, brigandage, torture and other barbaric cruelties upon the helpless civilian population of the over-run countries’. Prosecutor v Furundzija, Trial Judgment (10 December 1998) IT-95-17/1/T para 168 (pointing out that Generals Toyoda and Matsui were convicted of command responsibility for war crimes committed by their soldiers in Nanking, including widespread rapes and sexual assault. Hirota, the former Foreign Minister, was also convicted for rape and sexual assault). See below.
221 Idem at 288.
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Campanaro’s view the failure to specifically list sexual assault crimes within the tribunal’s Charter reduced rape to a minor crime, and reinforced the fact that historically rape had been considered to be an insignificant crime.223 Sexual assault crimes were only considered by the prosecution after a defendant had been charged with other crimes.224 The particulars of breaches in the indictment relating to rape were drafted as follows:
SECTION ONE
Inhumane treatment, contrary in each case to Article 4 of the said Annex to the said Hague Convention and the whole of the said Geneva Convention and to the said assurances. In addition to the inhumane treatment alleged in Sections Two to Six hereof inclusive, which are incorporated in this Section, prisoners of war and civilian internees were murdered, beaten, tortured and otherwise ill-treated, and female prisoners were raped by members of the Japanese forces.
SECTION FIVE
Mistreatment of the sick and wounded, medical personnel and female nurses, contrary to Articles 3, 14, 15 and 25 of the said Geneva Convention and Articles 1, 9, 10 and 12 of the said Red Cross Convention, and to the said assurances:
………
(c) Female nurses were raped, murdered and ill-treated,
Failure to respect family honour and rights, individual life, private property and religious convictions and worship in occupied territories and deportation and enslavement of the inhabitants thereof, contrary to Articles 46 of the said Annex to the said Hague Convention and to the Laws and Customs of War: Large numbers of the inhabitants of such territories were murdered, tortured, raped and otherwise ill-treated, arrested and interned without justification, sent to forced labour, and their property destroyed or confiscated.225
Thus rape and other crimes were classified as ‘inhuman treatment,’ ill-treatment’ and ‘failure to respect family honour and rights’. The crime of rape which the Allied prosecutors successfully
222 Copelon ‘Gender crimes as war crimes’ at 221.The reason why the IMTFE has been criticised for failing to deal adequately with sexually violence crimes, is because the Tribunal did not prosecute the defendants for sexual slavery which the Japanese imperial army committed. See below for an explanation of this.
223 Campanaro ‘Women, war and international law’ at 2564.
224 Ibid.
225 International Military Tribunal for the Far East, Judgment of 4 November 1948. See also Askin War crimes against women at 180.
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prosecuted related to atrocities committed in the Chinese capital city of Nanking in December 1937226. Before its invasion by the Japanese Imperial Army, the Chinese nationalist forces had pulled out of Nanking, moving westward, thus, making Hankow its new capital.227 Those who had the means to leave also left, ‘leaving the poorer classes and a small number of foreign missionaries defenceless’.228 Brownmiller, describes the ‘Rape of Nanking’ as it is popularly referred to, as an ‘orgy of wholesale assault against the. . . civilian population.’229 Iris Chang, in giving an account of the heinous crimes committed during the six weeks of the raping in Nanking states that:
Chinese men were used for bayonet practice and in decapitation contests. An estimated 20 000- 80 000 Chinese women were raped. Many soldiers went beyond rape to disembowel women, slice off their breasts, nail them alive to walls. Fathers were forced to rape their daughters, and sons, their mothers, as other family members watched. Not only did live burials, castration, the carving of organs and the roasting of people become routine, but more diabolical tortures were practiced, such as hanging people by their tongues on iron hooks or burying people to their waists and watching them get torn apart by German shepherds.”230
In drawing attention to the high number of those who were raped, Wood makes reference to Chang’s calculations. Chang, she states, calculated that the 20 000-80 000 thousand women (and girls) who were raped were 8-32% of the 250 000 female civilians in Nanking at that time.231 However, Wood, points out that it is not clear how Chang arrived at this figure.232 In its judgment, the Tribunal referred to the rape of Nanking by concluding that ‘[i]ndividual soldiers and small groups of two or three roamed over the city murdering, raping, looting and burning.’233
226 Brownmiller Against our will: Men, women and rape at 57.
227 Ibid.
228 Idem at 61. International Military Tribunal for the Far East, dissentient judgment of Justice Pal relating to the rapes which occurred in Nanking, found it difficult to believe the evidence of those witnesses who gave evidence in court. In his opinion their evidence was distorted and exaggerated. He should have at least been able to conclude that rape did occur, in the light of other evidence ie an eye-witness statement of rapes read into the record. Also an American missionary stated that at least one thousand cases of rape occurred at night and many during the day. Also Major Yasuto Nakayama, who was an intelligence officer, stated that he believed that several cases of rape occurred to a limited extent and apologised for that. In Askin’s opinion, Justice Pal’s remarks relating to the evidence were
‘disturbing and illuminating’ and it appeared that he had great difficulty in finding that rape had been committed.
Askin War Crimes Against Women at 189.
229 Idem at 57.
230 Picart ‘Attempting to go beyond forgetting’ at 27 quoting Iris Chang (1997) The Rape of Nanking: The forgotten Holocaust of World War II (1998) Basic Books at 6. Chang and Barker ‘Victor’s justice and Japan’s amnesia’ at 68 quoting Iris Chang The Rape of Nanking: The forgotten Holocaust of World War II at 6
231 Elizabeth J Wood ‘Variation in sexual violence during war’ (2006) 34 Politics & Society 307 at 311.
232 Ibid.
233 International Military Tribunal for the Far East, judgment at 494.
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The Tribunal further stated, in one paragraph when referring to the gender crimes which occurred in Nanking that234
. . . many cases of rape occurred. Death was a frequent penalty for the slightest resistance on the part of a victim or the members of her family who sought to protect her. Even girls of tender years and old women were raped in large numbers throughout the city, and many cases of abnormal and sadistic behaviour in connection with these raping’s occurred. Many women were killed after the act and their bodies mutilated. . . . Approximately 20 000 cases of rape occurred within the city during the first month of the occupation.235
Torture by way of burning victims or electric shocks was also used as a means of sexual violence on the prisoners of war and civilian internees. The application of electric current on a sensitive part of the body such as the nose, ears, sexual organs or breasts, was carried out.236 In later years the two ad hoc tribunals and the ICC acknowledged that rape by torture could be a form of sexual violence.237
Justice Pal’s dissenting judgment also gave an account of the rape which occurred at Nanking. His judgment and Chang’s research not only cited gender-based crimes committed against the Chinese female population, but also those against men who were forced to rape members of their families, which the prosecutor at the IMTFE did not consider prosecuting. This is not surprising, considering the fact that the charges brought against the defendants for rape committed against the women and girls were only brought when they had been charged with other crimes.238 Justice Pal’s dissenting judgment suggested that rapes alleged to have been committed by the Japanese had been exaggerated.239 Sellers used the same arguments as that put forward for the IMT, that the judges considered the evidence of sex-based crimes, which shaped the IMTFE judgment. She was of the opinion that the fact the Tribunal disregarded Justice Pal’s dissenting judgment implied that the Japanese misconduct in respect of the rapes committed in Nanking had been exaggerated was proof of the studied consideration given to sex-based crimes.240 However, the Tribunal, subsumed the rape crimes under the command responsibility
234 See Richard J Goldstone ‘Prosecuting rape as a war crime’ (2009) 34 Case Western Reserve Journal of International Law 227 at 279 (stating that IMTFE ‘devotes one paragraph in the opinion to the gender crimes that came to be named the “Rape of Nanking”.’
235 International Military Tribunal for the Far East, Judgment at 495.
236 Idem at 517.
237 See sections 2.3 and 2.4.2.
238 Campanaro ‘Women, war and international Law’ at 2564.
239 International Military Tribunal for the Far East, Dissentient Judgment of Justice Pal.
240 Sellers ‘The cultural value of sexual violence’ at 319-320.