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INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST

(TOKYO TRIAL)1

The International Military Tribunal for the Far East was set up in January 1946 by a
proclamation of the Supreme Commander for the Allied force in Pacific Theatre, General
Douglas Mac Arthur. The tribunal was established by the victorious States in pursuant to the
Postdam Declaration of July 20, 1945. The Charter of this Tribunal was approved on January
19, 1946. The Trial commenced on June 4, 1946 at the permanent bench of this tribunal
which was in Tokyo. It is also known as Tokyo Trial, or The Tokyo War Crimes Tribunal.

The judgment of IMTFE was not a unanimous decision. The Indian Judge Justice
Radhabinod Pal, strongly dissented from the majority opinion on the illegality of aggressive
war and the establishment of personal liberty for acts of state.2

Background

In December, 1941, the American involvement in World War II began, when the United
States declared war on Japan, and formally ended in September 2, 1945, when the Japanese
surrendered in Tokyo. Bay abroad the USS Missouri. For more than a decade before the war,
the Japanese military had been expanding its foothold on the Asiatic mainland. During the
war itself, Japan invaded or attacked Burma, China, Indochina, the Philippines, Malaysia,
Manchuria, Wake Island, Hong Kong, Singapore and the Aleutians committing an arrey of
atrocities. The Tokyo trial was the Allies’ effort to hold Japan responsible for its crimes
during this period of Military aggression.

Creation of the Court

On January 19, 1946, Mac Arthur issued a special proclamation ordering the establishment of
an International Military Tribunal for the Far East. On the same day he also approved the
Charter of the IMTFE, which prescribed how it was to be formed, the Crimes that it was to
consider, and how the tribunal was to function. The Tribunal generally followed the model
set by the Nuremberg Tribunal. On April 25, in accordance with the provision of Article 7 of

1
The Tokyo War Crimes Trials (1946-1948), Available at:
http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX101.html (Visited on March 30, 20 16)
2
H.O. Agarwal, ‘International Law and Human Rights’, Central Law Publications, Allahabad, 2011, p.599.
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the Charter of the IMTFE, the original rules of procedure of the IMTFE with amendments
were promulgated.

Signatory States

Signatory States to the Japanese Surrender were Australia, Canada, China, France, New
Zealand, the Netherlands, the UK, the US, and the USSR.

Judges

The tribunal was made up of 11 judges, nine from signatory states to the Japanese Surrender,
together with each from India and the Philippines. This unwieldy bench was overseen by the
Australian Judge, Sir William Webb.

Prosecutor

The US was entitled to appoint the chief prosecutor whilst the other countries were only
permitted to appoint associate prosecutors. So, the President, Harry S. Truman, appointed
Joseph B. Keenan of United States as Chief Prosecutor.

Defence

The defence was taken by a number of Japanese, and American Lawyers. The most well
known of whom were Kenzo Takayangi, a professor of Anglo-American Law from Tokyo
and Ichiro Kiyose, a politician and lawyer.

Defendants

There were 28 defendants, mostly military officers and government officials.

Tokyo War Crimes Trial

The IMTFE converted on April 19, 1946. The Trials were held in the war Military Office in
Tokyo.

On May 3, the prosecution opened its case, charging the defendants with conventional War
Crimes, Crimes against Peace and Crimes against Humanity.
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The trial continued for more than two and a half years, having testimony from 419 witnesses
and admitting 4336 exhibits of evidences, including depositions and affidavits from 779 other
individuals.

Charges

Following the model used at the Nuremberg Tribunal in Germany, the Allies establish three
broad categories:

Class A— “Class A” crimes were reserved for those who participated in a joint conspiracy to
start and wage war, and were brought against those in the highest decision making bodies.

Class B— “Class B” crimes were reserved for those who committed “Conventional”
atrocities or Crimes against Humanity.

Class C— “Class C” crimes were reserved for those in “the planning, ordering, authorization,
or failure to prevent such transgressions at higher levels in the command structure.

28 Japanese military and Political leader were charged with Class A crimes, more than 5700
Japanese nationals were charged with Class B and Class C crimes, mostly entailing prisoner
abuse.

Evidence and Testimony

The prosecution began opening statements on May 3, 1946 and took 192 days to present its
case, finishing on January 24, 1947. It submitted its evidence in fifteen phases.

Defence Proceedings

The defendants were represented by over a hundred attorneys, seventy-five percent Japanese
and twenty-five percent American, plus a support staff. The defence opened its case on
January 27, 1947 and finished its presentation 225 days later.

Judgment

The International Military Tribunal spent six months reaching judgment and drafting its 1781
page opinion. On the day the Judgment was read, five of the eleven Judges released separate
opinions outside the Court.
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Dissenting Judgement— Dr. Radha Vinodpal who was one of the judges of the Tokyo
Tribunal, delivered his dissenting judgment. According to him, war was beyond the scope of
International law though its conduct is within that neither the Pact of Paris comes under the
category of law nor has it brought about any change in the Status of war. According to him,
International law has not developed so much so as to make war a crime. Similarly he
expressed the view that conspiracy was not an independent crime under International Law.
Consequently, he ruled that the accused should be declared not guilty as there was no
evidence on the record to prove their guilt.3

Sentencing

The Case results in sentencing as follows:

 The Case was dropped against one defendant, Shumei Okawa. Sir William Webb
concluded that he was mentally ill.
 Two defendants, Matsuoka Yosuke and Nagano Osami, died of natural causes during
the trial.
 Seven defendants were sentenced to death by hanging. Out of these seven, six were
sentenced for Crimes under Class A, Class B, and Class C and one for Class B and
Class C crimes.
 Sixteen defendants were sentenced to life imprisonment. Out of these sixteen, three
died in prison and the other thirteen were parold between 1954 and 1956.
 One defendant, Foreign Minister Shigenori Togo, was sentenced to 20 years
imprisonment and dies in prison in 1949.
 Another one defendant, Foreign Minister Mamoru Shigemitsu, was sentenced to 7
years.

3
S. K. Kapoor, ‘Human Rights’, Central Law Agency, Allahabad, 2009, p.766.
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UNITED KINGDOM V. ECK

(THE PELEUS TRIAL)4

The Peleus Trial was conducted by the British Military Court in 1944-45. The decision was
given in October 1945.

Background

The “Peleus” was a Greek ship chartered by the British Ministry of War Transport. The crew
consisted of a variety of nationalities; on board there were 18 Greeks, 8 British seamen, one
seaman from Aden, two Egyptians, three Chinese, a Russian, a Chilean and a Pole.

On the 13th March, 1944, the ship was sunk in the middle of the Atlantic Ocean by the
German submarine No. 852, commonly known as U-Boat 852, commanded by the first
accused; the Captain, Heinz Eck. Apparently the majority of the members of the crew of the
“Peleus” got into the water and reached two rafts and wreckage that was floating about. The
submarine surfaced, and called over one of the members of the crew who was interrogated as
to the name of the ship, where she was bound and other information.

The submarine then proceeded to open fire with a machine-gun or machine guns on the
survivors in the water and on the rafts, and also threw hand grenades on the survivors, with
the result that all of the crew in the water were killed or died of their wounds, except for
three, namely the Greek first officer, a Greek seaman and a British seaman. These men
remained in the water for over 25 days, and were then picked up by a Portuguese steamship
and taken into port.

Charges

There were 5 prisoners charged with mainly Committing a war crime in that they in the
Atlantic Ocean on the night of 13/14th March, 1944, when Captain and members of the crew
of U-boat 852 which had sunk the steamship “Peleus” in violation of the laws and usages of

4
Law Reports of Trials of War Criminals, Volume 1, Published for The United Nations War Crimes Commission
by his Majesty’s Stationary Office, 1947, pp.1-20, Available at:
https://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-1.pdf (Visited on April 1, 2016)
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war were concerned in the killing of members of the crew of the said steamship, Allied
nationals, by firing and throwing grenades at them. The 5 prisoners were:

 The Captain Heinz Eck.

 Lieutenant Hoffmann,
 The medical officer, Weisspfennig,
 Engineer-lieutenant, Hans Richard Lenz
 Gefreiter Schwender.

Defence

Defence of Heinz Eck, the Captain

The defence of Heinz Eck was based on the submission that he, as the commander of the U-
boat, did not act out of cruelty or revenge but that he decided to eliminate all traces of the
sinking. The Defence claimed that the elimination of the traces of the “Peleus” was
operationally necessary in order to save the U-boat.

Defence by Leutnant Engineer Lenz and other accused

Leutnant Engineer Lenz, had taken the defence of superior’s orders. He said that when he
heard that the captain had decided to eliminate all traces of the sinking, he approached the
captain and informed him that he was not in agreement with this order. Eck replied that he
was nevertheless determined to eliminate all traces of the sinking. Lenz then went below and
did not take part in the shooting and throwing of grenades. Later on, Lenz went on the bridge
and noticed the accused Schwender with a machine gun in his hand. He saw that Schwender
was about to fire his machine gun at the target and thereupon he, Lenz, took the machine gun
from Schwender’s hand and fired it himself in the general direction of the target indicated. He
did this because he considered that Schwender, long known to him as one of the most
unsatisfactory ratings in the boat, was unworthy to be entrusted with the execution of such an
order.

With regard to the plea of superior orders, defence said that he stuck “to the good old English
principles” laid down by the “Caroline case,” according to which, he submitted, it was a well-
established rule of International Law that the individual forming part of a public force and
acting under authority of his own Government is not to be held answerable as a private
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trespasser or malefactor, that what such an individual does is a public act, performed by such
a person in His Majesty's service acting in obedience to superior orders, and that the
responsibility, if any, rests with His Majesty's Government.

The other accused also taken the defence of superior’s order.

Observation

With regard to the defence of superior orders, the Judge Advocate said that the duty to obey
is limited to the observance of orders which are lawful. There can be no duty to obey that
which is not a lawful order. The fact that a rule of warfare has been violated in pursuance of
an order of a belligerent government or of an individual belligerent commander does not
deprive the act in question of its character as a war crime; neither does it confer upon the
perpetrator immunity from punishment by the injured belligerent.

Regarding the defence of operational necessity, the Judge Advocate ruled that the question
whether or not any belligerent is entitled to kill an unarmed person for the purpose of saving
his own life did not arise in the present case. It may be, he said, that circumstances could
arise in which such a killing might be justified. On the facts which had emerged in the present
case, however, the Judge Advocate asked the Court whether or not it thought that the
shooting with a machine gun at substantial pieces of wreckage and rafts would be an effective
way of destroying every trace of the sinking. A submarine commander who was really and
primarily concerned with saving his crew and his boat would have removed himself and his
boat at the highest possible speed at the earliest possible moment for the greatest possible
distance.

The case contains, therefore, no decision on the question whether or to what extent
operational necessity legalises acts of cruelty such as shooting at helpless survivors of a
sunken ship because on the facts of the case this behaviour was not operationally necessary,
i.e. the operational aim, the saving of ship and crew, could have been achieved more
effectively without such acts of cruelty.
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The Sentence

The Royal Warrant provides in Regulation 9 that a person found guilty, by a Military Court
of a war crime may be sentenced to anyone or more of the following punishments, namely:
(1) death (either by hanging or by shooting), (2) imprisonment for life or for any less term,
(3) confiscation, (4) a fine.

After Counsel for the Defence had pleaded in mitigation on behalf of the accused and some
of them had also called witnesses, the findings and sentences of the court were pronounced
on 20th October, 1945, subject to confirmation. The sentences were confirmed by the
Commander-in-Chief, British Army of the Rhine, on 12th November, 1945.

In the “Peleus” case three of the accused, namely, the commander of the U-boat, Eck, one of
the officers, Lieutenant Hoffmann and the medical officer, Weisspfennig, were sentenced to
death by shooting, the two latter in spite of their plea of superior orders. The ship’s engineer,
Lenz was sentenced to imprisonment for life. In his case the Court probably took into
consideration, on the one hand, that he did, to a certain extent, oppose the order given by the
commander to the other accused (not to him), and that, on the other hand, he had, without
being personally ordered, eventually taken part in the shooting. The fifth accused, the only
rating in the dock, was sentenced to 15 years imprisonment, the Court probably considering
the superior order given to him as an extenuating circumstance.

The sentences of death imposed on Heinz Eck, Weisspfennig, and Hoffmann, were put into
execution at Hamburg on 30th November, 1945.
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BIBLIOGRAPHY

 Kapoor, S. K., ‘Human Rights’, Central Law Agency, Allahabad, 2009.

 Agarwal, H.O., ‘International Law and Human Rights’, Central Law Publications,
Allahabad, 2011.
 https://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-1.pdf
 http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX101.html