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オクラホマの法律家と東京裁判－オクラホマ大学での講演 2007年3月2日

在ヒューストン日本国総領事　加茂佳彦

 

Thank you for your kind introduction, Professor Brown.

 

Ladies and gentlemen! I am thrilled to be invited to speak here today at the University of Oklahoma on controversial issues related to Japan’s past, as found in the Tokyo Tribunal. I would like to thank Professor Brown for his excellent arrangement and advertisement which has drawn such a crowd here. I am not sure whether my talk will entertain you or live up to your expectations. In any case let me try my best.

 

How much do you know about the Tokyo Tribunal? The Tokyo Tribunal is officially called the International Military Tribunal for the Far East. It convicted the Japan’s war leaders 60 years ago. Together with the Nuremberg Tribunal, it is said that the Tokyo Tribunal played a historical role in bringing the war criminals to justice. It is rare, however, that the Tokyo Tribunal would be discussed with depth and intensity here in the United States.

 

Recent years, however, have seen politicization of the issues related to Japan’s history and its militaristic past. Anti-Japanese riots in China in the spring of 2005 partly resulted from the issues related to Prime Minister Koizumi’s visit to the Yasukuni Shrine and the alleged rewriting of history text books by the Japanese education authorities. These condemnations in fact are deeply connected with the Tokyo Tribunal. The Yasukuni Shrine enshrines 14 Class-A war criminals of the Tokyo Tribunal along with another nearly 2.5 million patriotic victims who sacrificed their lives for their nation. When it is alleged that Japan is rewriting history, it is the interpretation of history derived from the Tokyo Tribunal that targeted.

 

Now take a look at “Table of Contents”. These are items that I am going to pick up for my talk: Nuremberg, Atomic Bombs, Pearl Harbor, Last Emperor, Rape of Nanking, and Comfort Women. They are impressively wide ranging and look disturbingly provocative.

 

OK. The Tokyo Tribunal is perhaps of some importance to Japanese. Many controversial issues, either directly or indirectly, derive from it. But what on earth makes us bother? Why is it important to Oklahoma? You may ask.

 

The Tokyo Tribunal gave its blessing to the historic interpretation on which its verdicts were based. This interpretation has become the mainstream interpretation of history in the world today. In the United States, it is perceived as the undisputed historic fact and established as such. In Japan it is also taught as the correct history.

The US is the victor. Without much difficulty, it is agreed that the U.S. fought a just war with lofty causes. For Americans the case is closed. Japan has tried to be a good loser. She remains humble and has refrained from open challenges to the victor’s just cause. The case is yet to be closed, however, as Japan still suffers from the politicization of historic issues. While embracing challenges caused by recurring politicization, it may be said that in Japan some efforts are being made to collect and preserve historical facts for future judgment.

 

Benjamin Bruce Blakeney cut an impressive figure as one of the American lawyers who served for the defense of the Japanese defendants at the Tokyo Tribunal. He was from Oklahoma originally, although he graduated from HarvardLawSchool. He impressed Japan with his lofty professionalism, solid legal arguments and sharp mind, which stunned the Japanese intellectuals and made him win their respect.

 

By the way, do you know what day it is today? Yes. It’s Texas Independence Day, of course. But more importantly, it is the inaugural day for Lloyd Hardin, Jr., another Oklahoma lawyer, to assume the post of honorary consul general of Japan at Oklahoma City. In order to celebrate Mr. Hardin’s inauguration and wish him all the best, I am taking up a story of another great Oklahoma lawyer by shedding light on his defense arguments at the Tokyo Tribunal and their implications.

 

Having said this, here’s my excuse or two to be made. I am neither a lawyer nor a historian. It is beyond my capacity to argue with precision and comprehensiveness issues of this complexity. I have quickly re-read a couple of Japanese books and some relevant articles in preparation for today’s presentation. What I am going to give here is a layman’s account which is sketchy at best. Another warning is that I will make reference to various statements made by various people during my presentation. I am sorry to say that these are not direct quotes from the original English texts but my translation from Japanese books and as such potentially prone to be both imprecise and inaccurate. The Japanese government released various statements on related subjects. My remarks today are my personal views and will not represent the official position of the Japanese government in any way. Due to the nature of the subject, I may sound like a propagandist from time to time. Please do not take it as the Japanese government’s propaganda, but rather my personal propaganda.

 

At the outset of my talk, I would like to introduce you to the petition by Ben Bruce Blakeney that was presented to General MacArthur who convened the Tokyo Tribunal. This petition was written and sent by Blakeney on behalf of the whole defense team, only 9 days after the verdicts and sentences were handed down at the Tokyo Tribunal. The petition condemned the Tribunal, determined it flawed and unjust and requested General MacArthur to intervene on the verdicts and sentences and allow leniency by pointing out the following shortcomings of the trial. These points well illustrate the views of the defense side about the Tokyo Tribunal.

 

So now you have a rough idea about the Tokyo Tribunal. But what was decided there and how was it decided? Let us look at some of the factual data concerning the Tribunal. The Tokyo Tribunal remained open from 1946 to 1948. During the trial, 28 Class-A defendants were indicted for “Crimes against Peace”, “Crimes against Humanity” and other war criminal charges. The juries and prosecutors were drawn from 11 countries that were adversaries of Japan. In addition to prosecutors representing each adversary country, Mr. Josef Kenan of the U.S. served as Chief Prosecutor and led the trial. General MacArthur appointed these court officials. As I said, 20 American defense counsels were called in to help facilitate the Japanese defense lawyers who lacked in experience and expertise in American laws. U.S. Army Major Ben Bruce Blakeney was selected as one of these lawyers while he was in Japan, serving for the Occupation Army there. I don’t know whether he volunteered or his superior ordered him to serve as an American defense counsel at the Tokyo Tribunal.

 

At the conclusion of the trial, all 25 were convicted and 7 were sentenced to death by hanging. Initially 28 were indicted, but 2 died and 1 went mad during the trial. The Japanese government faithfully executed the court judgments. Japan ended World War II legally and collectively by the signing of the 1951 San Francisco Peace Treaty with the Allied Powers. One of the articles of the treaty prescribes Japan’s adherence to the judgments of the Tokyo Tribunal.

 

It is often said that the Nuremberg Tribunal and the Tokyo Tribunal can be compared to identical twins. Is it true? In my view, the comparison seems appropriate on some points, for sure. But a hasty and simple comparison is dangerous and misleading as the two trials differ so much in characteristics and conditions. So let’s compare the two objectively.

 

In both trials, the defendants were indicted with the ex-post-facto laws of “Crimes against Humanity” and “Crimes against Peace”. At Nuremberg the Nazis Germany leaders were convicted on the charge of “Crimes against Humanity”. They were acquitted of the other charge of “Crimes against Peace”. The judges were all German nationals who refused to acknowledge this newly named crime. At Tokyo the judges were all from adversary countries and convicted the Japanese war leaders on the charge of “Crimes against Peace”, while they acquitted the defendants of the “Crimes against Humanity” charge.

 

It is to be noted that there was a decisive difference between Germany and Japan with regard to ending the war. In the case of Germany, its mainland was invaded by the Allied forces and razed to the ground. Its government was completely destroyed and accepted an unconditional surrender. In the case of Japan, the main islands were not invaded and its government and military remained intact and fully operational. Japan surrendered in accordance with the conditions set forth by the Potsdam Declaration. On September 2, 1945, Japan and the Allied Powers signed and exchanged the legal document to effectuate Japan’s surrender on board the USS Missouri in TokyoBay. This international agreement stipulated the conditions for Japan’s surrender and legally bound both Japan the loser, of course, and the Allied Powers the victor. It was not an unconditional surrender of the state like Germany, although the Potsdam Declaration demanded an unconditional surrender of the military to the Allied Powers. This is confusing but it should be differentiated as such.

 

This is the crucial point with which Japan’s defense team at the Tokyo Tribunal tried to challenge the authority and jurisdiction of the Tribunal. They tried to convince the judges that a mere application of the Nuremberg example to the Tokyo Tribunal was both inappropriate and invalid. The judges rejected their argument and motion to disqualify the trial without explaining their logic, but committed to future accountability.

 

So much for a long introduction! Now we are going to look at Ben Bruce Blakeney at his most illustrious moments during his court appearance at the Tokyo Tribunal.

 

His first appearance at the Tribunal, which occurred 5 days after the beginning of the trial, turned out to be sensational. He startled all ofJapan by mentioning the atomic bombs. The talk of atomic bombs was taboo at that time among the Japanese, and he broke that taboo.

 

He was discussing international laws saying that international laws permitted wars as a means to resolve international disputes among nations; that killing in wars was legal. Then he made reference to the atomic bombs.

 

He said that those involved in the atomic bomb program never realized they were committing murder; we know who the Army Chief and the President both were.

 

He never meant to say that it is unfair not to blame anyone for dropping the bombs. He wanted to highlight his point that killing in wars is legal and international laws never demand individual responsibility for killings in wars. In fact the “Tu quo que (You did the same)” logic is not supposed to be cited by the losers. It is a fact of life that the victors are never accused of their conducts as an affront to international laws.

 

At a later date, Blakeney once again made reference to the atomic bombs and outwitted the Chief Judge. He was arguing the general principles of international laws as part of the defense arraignment. He contended that international laws never prohibited wars nor accused individuals of waging wars. In order to support his argument he tried to submit a piece of evidence which revealed that U.S. Secretary of War Stimson decided to drop the atomic bombs in Hiroshima and Nagasaki. The British prosecutor made a point of order to preempt Blakeney’s move for fear that it might bring an undesirable consequence for the Allied Powers’ standing. He insisted that the weapons used by the Allied Powers had no relevance to the issues examined in the current arraignment. Blakeney hurried to respond to this intervention by saying that some international laws prohibit the use of certain type of weapons and the atomic bombs belonged to this category of weapons. Therefore, he contended that dropping the atomic bombs constituted a violation of the international law. Then Chief Judge Webb intervened by asking what kind of difference it would make, should Blakeney’s argument be proven right. Blakeney pointed out that the Japanese actions taken after the dropping of the bombs would be justified as the right of reprisal. The Chief Judge had to agree to the effect that there could be room for that argument; that Japan might be exonerated from her actions taken after the atomic bombs were dropped as they resulted from Japan’s exercising her right of reprisal. He was cornered to the point where he was pressured to abruptly adjourn the arraignment. After a brief recess, the Chief Judge reopened the trial and rejected Blakeney’s attempt to submit the evidence to the court. Blakeney’s argument did not prevail after all, but he apparently outperformed the Chief Judge in making his case for this issue.

 

In any event, Japan, for the first time, knew who decided to drop the bombs. Ben Bruce Blakeney had let the Japanese know the secret.

 

The Japanese defendants were also indicted with the charge of “murder by attacks prior to the declaration of war”. The prosecutors were trying to prove the procedural flaw of Japan’s attack against Pearl Harbor was intentional, driven by conspiracy and illegal. Blakeney tried to refute the prosecutors’ arguments by making it clear that a clerical error, not conspiracy, was responsible for Japan’s failure to deliver its ultimatum to the U.S. before its attack on Pearl Harbor. The Japanese side tried to deliver it in time without success and the U.S. decoded the Japanese telegrams and anticipated the attack. He cross-examined witness Ballantine, advisor to the State Department, who appeared and testified at the trial at the request of the prosecutors. This was arguably one the most brilliant cross-examinations ever done at the Tokyo Tribunal and elicited several advantageous testimonies for the defendants.

The Ballantine testimony also shed light on an interesting episode about a telegram sent by President Roosevelt to Emperor Hirohito. On December 6, 1941, the U.S. President sent a telegram to the Japanese emperor. This telegram reached Tokyo at 12 noon December 7, but U.S. Ambassador Grew received the telegram at 10:30 on the same night. The Japanese authorities censored the telegram, which caused the delay in delivery. Ambassador Grew immediately delivered the telegram to the Japanese government, but the telegram was never delivered to the Japanese emperor.

 

The telegram alluded that there could be a possibe way out of the deadlock, provided that Japan withdrew its forces from South Indochina. The prosecutors argued that if Japan took a different action in responding to this telegram, the war might have been averted. Is it true?

 

The Presidential telegram was sent only after the U.S. government knew that the Japanese ultimatum was coming by decoding the pilot telegrams they received on December 6. There is a possibility, therefore, that the Presidential telegram could be a sort of U.S. conspiracy to portray her as an honest player who made every effort to avoid the war until the end. It may be that if this Presidential telegram were sent 10 days earlier instead of the Hull note, there could have been a new outcome to the situation. No one can tell, but this belongs to the “what ifs” in history.

 

In any case, the Presidential telegram story never became prominent, because America found a much better slogan to discredit Japan. Japan’s “surprise” attack on PealHarbor was militarily a sweeping success but psychologically a disastrous blunder. It left a legacy for America to take advantage of the situation by imparting legitimacy to going to war in the Pacific and Europe and boosting morale at home and abroad.

 

PearHarbor has become synonymous with treachery and “sneak attack”. As I said before, the Tokyo Tribunal indicted the Japanese war leaders with the charge related to the Pearl Harbor attack. It, however, dropped the charges when it convicted all the defendants with other charges at the time of the verdicts. It sounds a bit ironical but the Tokyo Tribunal acquitted Japan of charges related to Pearl Harbor, implying that the charges were trivial.

 

Blakeney cross-examined Puyi, the Last Emperor of the Qing Dynasty, for his role in building a new nation called Manchuria. In 1932 Manchuria declared independence with Puyi as its head of state. Puyi caused trouble for Blakeney. Puyi insisted that the Japanese military conspired to put him back on the throne of Manchuria and he was a helpless Japanese puppet. At his cross-examination, he responded with “I don’t know” and “I forgot” to any questions posed by Blakeney.

 

Blakeney tried to discredit Puyi as a witness by presenting Puyi’s letter addressed to the Japanese Army Minister Minami to the court. In that letter he expressed his appreciation for the Japanese support and reaffirmed his willingness to cooperate with the Japanese in building his new nation. Puyi got greatly flustered by the letter, and insisted that the letter was forged. He never admitted that he wrote the letter to the end.

 

There is a follow-up story about his letter. 18 years later, Puyi wrote his autobiography and he confessed that he committed perjury at the trial and that he wrote the letter. He explained that he tried to cover up his crimes in order to protect himself, which warped the truth of history. According to the book’s account, he was fearful of the Guomindang Chinese government as they were demanding his trial and execution.

 

As I have now told you some of the shiny moments that Ben Bruce Blakeney had during the Tokyo Tribunal, perhaps you have come to understand why I am enthusiastic about him. Contrary to my personal admiration, you may find him disgusting, revisionistic, unpatriotic, a shame to Oklahoma, and so forth.

 

But he did whatever he could to protect his clients, as he was chosen to serve as one of the U.S. defense counsels for the Japanese defendants by the U.S. military. This is no treason to his country. After all, the American defense counsels proved themselves to be true professionals as they carried out their difficult job of defending their former adversaries as clients. Their Japanese colleagues, unsure of the roles and intentions of the U.S. attorneys at first, were deeply impressed with their dedication and integrity and saw them as the embodiment of American conscience and strength.

 

Blakeney has left a statement which conveys the aspirations that the American defense counsels hoped for at the court of the Tokyo Tribunal. At the first arraignment session, Chief Prosecutor Kenan said that American conscience made him take up this job of bringing the leaders of aggression in the war to justice. In response to this jibe towards the American defense lawyers, Blakeney retorted that the defense lawyers in U.S. uniform also have the right to speak for America, that he supports America, justice in the light of democracy, and trust on loyalty to American justice and law. This patriotic counter-jibe accurately represented the spirit of the American defense counsels.

 

Blakeney was not involved in the arraignment relating to the Rape of Nanking at the Tribunal. It was one of the highlights of the Tokyo Tribunal, as China attached highest priority to the issue. Since this year marks the 70th anniversary of the incident and newly filmed movies on the theme are expected to be shown in the coming months, I would like to describe how the trial went and what was discovered concerning the incident called the Rape of Nanking that took place in 1937.

 

The incident was known world-wide at the time of its occurrence; the Nanking fortress fell on December 13, 1937 and the Japanese army forces officially marched into the fortress on December 17, 1937. However, many Japanese came to know about the incident for the first time from the reports of the trial on the issue at the Tokyo Tribunal.

 

The prosecutors insisted that the Japanese army committed an unprecedented atrocity in Nanking in December 1937 and summoned 9 witnesses and submitted 17 affidavits and several other documents to the court. Generally speaking, the Japanese cross-examination was weak and unimpressive. But it elicited a testimony from an American pastor who gave the most vivid and shocking account of the atrocity. The stories he recounted about the atrocity were, in fact, based on rumors he heard, except for 1 case involving 1 victim that he himself witnessed. Those affidavits, lacking witnesses, therefore unchecked by cross-examinations, were nonetheless confirmed as evidence by the court.

 

The Japanese summoned 3 witnesses and submitted 3 affidavits. The testimony was short and loose. Apparently the Japanese side wanted to avoid a head on confrontation, taking into account the international indignation and the evidence the prosecutors piled up. They tried to focus on the personal defense for General Matsui, the commander in chief of the Japanese expeditionary army forces which invaded Nanking. The Japanese defense modestly counter-argued that Gen. Matsui knew about the incident only after he marched into the Nanking fortress; that he made every effort to maintain discipline among his soldiers; that the Japanese properly issued the surrender recommendation note before attacking; and that the Chinese commander and their authorities irresponsibly fled before the enemy, leaving the city a chaotic mess.

 

The documents submitted by the Chinese included the statistics of losses and damages from the incident compiled immediately before the Tokyo Tribunal took place. The numbers alleged that 300,000 were killed and 20,000 were raped. My common sense tells me that Japan could have challenged these figures then as they seem to be exaggerated and unfounded by any standards. But she did not do so. In retrospect, Japan’s war guilt, which framed Japan’s response to the issue, made her remain unguarded against disinformation warfare.

 

The Guomindang government led by Chiang Kai-shek was very good at manipulating propaganda. Indeed public relations, particularly with the West, constituted one of the most important strategies they employed. It is a well-known fact that the American people at that time were, for instance, enchanted by Madam Mayling Soong, wife of Chiang Kai-shek. The Chinese skillfully managed to run their disinformation campaigns involving many under-cover agents in order to brew sympathy for China in the minds of the peoples of the world. Chiang Kai-shek drew his strength and power from maintaining good relations with the Western powers, as his government was struggling to regain control over a chaotic China, rife with conflicts with the looming communists and the warring local warlords even before the Japanese invasion. It was Chiang Kai-shek’s strategic decision to team up with the Western powers, who were China’s oldest and most formidable enemies, in the face of his new enemies who threatened his rule and authority.

 

Japan, too, was mindful of propaganda warfare. She recognized the importance of propaganda.But her propaganda was clumsy and ineffective. The target of her propaganda was not world opinions but the domestic audience in Japan. She tried to solicit domestic patriotism by concocting bravery sagas and exaggerating military gains to beef up patriotic fervor among the Japanese.

 

Chiang Kai-shek exaggerated and played up Japanese brutality through his propaganda to the world spectators. The Japanese military together with the Japanese media infused the Japanese nationals with the amplified bravery and fabricated stories of valor. The synchronization of these two waves of propaganda played a big part in establishing the hyperbole of Japanese cruelty. Japan has to bear part of the responsibility for this, of course, but I have to say it is regrettable that this ill-conceived perception still lingers and haunts us.

 

From the ancient to the contemporary, from the east to the west, it is a fact of life that the victor, not the loser, writes history. Human history can be construed as the compilation of the propagandas of war by the victors. The loser cannot afford to rewrite or beautify its history. The loser’s best friend is historical fact.

 

Last, I would like to take up the comfort women issue. The comfort women issue did not appear at the Tokyo Tribunal at all. Nor was there any claim or mention about this issue at the 13-year long negotiations from 1952 to 1965 between Japan and South Korea for normalizing our relations. The awareness for human rights that grew in the 1990s made an issue of it, and got it politicized. The Japanese government took it very seriously and then Chief Cabinet Secretary Kono issued a statement in1993, admitting the involvement of the Japanese military and offering an apology. She established the Asian Women’s Fund in 1995 for running atonement programs. In 2001, Prime Minister Koizumi offered his apology.

 

Currently, a draft House resolution calling for the official recognition and apology has been tabled in U.S. Congress. Hearings have been held with witnesses. Similar resolutions were submitted eight times to U.S. Congress in the past and turned down each time since 1996. The Japanese government considers the draft House resolution unacceptable as it contains factual errors and does not reflect the measures taken by the government in the past at all. The Japanese government also worries that the draft House resolution issue might crack our trust.

 

This is a humanitarian issue. Japan has an acute sense of guilt. The virtue of humility ingrained with our culture preaches to us to be honest and humble in admitting our sins and undertaking our responsibility. At the Tokyo Tribunal, the Japanese defendants were convicted of what seemed reasonably doubtful, and they accepted this. As for the issue of comfort women, I think that the Japanese government, driven by the acute sense of guilt and genuine reflection, has taken responsible measures. Despite the substantial efforts to research the evidence by the both South Korean and Japanese governments, there was no document to be found to directly suggest coercion in recruitment of these women by the Japanese military so far. There is no denying, however, that the Japanese military was involved directly or indirectly in running or regulating brothels. The Japanese psyche regarding the taking of responsibility decisively as honorable, coupled with a political consideration aiming at securing broader national interests, in my view, played a part in leading the Japanese government to issue the statement which admitted the involvement of the Japanese military and offered a sincere apology in 1993. This is an expression of the Japanese culture of conscience.

 

Please look at Japanese conduct objectively. We are neither angels nor demons; we have made lots of mistakes and suffered weaknesses and shortcomings. But I would say that Japan has been a very consistent rule abider since her first debut to the international community 150 years ago, from her self-imposed insulation from the rest of the world. Despite her disadvantageous standing in the prevailing imperialistic world as the sole non-white late-comer, she tried every effort to overcome the handicap in accordance with the rules of the day. She never attempted to overturn the existing world order by revolutions. Since the end of World War II, she has been a status-quo player rather than a challenger. She has become a close ally of the United States. The Japanese government is committed to consistency. For that matter, The Japanese inherits from our cultural tradition to attach importance, above all, to honor, discipline, trust and coherence. We value harmony with nature and with other people, while we discipline ourselves with the Samurai spirit. Equality is another value we uphold. Please note that we don’t have any world-class ultra rich emperors or shoguns in Japanese history. They were not mega-rich, first of all, but they did share their wealth with the people. It is our proud tradition to cherish compassion and social justice.

 

Reverting to the issues of the “Rape of Nanking” and “Comfort women” being politicized in this manner after 60 years or 70 years of their occurrence, I cannot help but smell the scent of disinformation warfare, rather than that of battlefield confusion and insanity. I feel that there is an intention to relegate the Japanese to a perceived notion of cruel and inhuman monsters of enormous proportions. This is a historical irony at its starkest, which saddens me most. Because I believe that the real Japanese is most remote from what this propaganda depicts. Please recall the Kobe earthquake in 1995; not a single incident of looting occurred during the emergency caused by the gigantic natural disaster; spontaneous mutual-help helped maintain civic integrity, while compassion permeated. This would indicate that we have honesty, discipline and law-abidingness in our DNA, which sometimes causes us to go too far.

 

I am afraid that I have turned the soaring spirit of Blakeney with his commitment to law and justice into my personal propagandistic howl in the end. I have been trying to introduce some aspects of the Tokyo Tribunal through the work of Ben Bruce Blakeney. There are other important arguments pertaining to the Tribunal, of course, including the fundamental question regarding the legality and jurisdiction of the trial itself which I very briefly touched on at the outset of my presentation. If we were to continue, we might miss lunch. My dear friend and another formidable Oklahoma lawyer, Mr. Hardin has been giving me the look for a while now, that I should stop here as he has had enough. As I make it a rule to follow advice from talented Oklahoma lawyers, I will gladly accept his advice.

 

Thank you very much.