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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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August-September 1945: Critical Developments

August 1945 witnessed a momentous evolution in U.S.-Japanese relations and the development of a coherent transitional justice strategy for addressing Japanese suspected of committing atrocities. First, hostilities in the Pacific Theater climaxed that month with the U.S. atomic bombings of Hiroshima on August 6, 1945, and of Nagasaki three days later. Five days afterward, Japan accepted the unconditional surrender demanded in the Potsdam Declaration, thus ceding to the Allies three months after Germany did.32

Second, after surrendering and before the Allied occupation, the Japanese attempted to thwart Allied efforts to prove their atrocities. During August 1945, the Japanese government employed a massive campaign within the country and its occupied territories to doctor, damage, or destroy (mostly by burning) much of the incriminating evidence (records, witnesses, and corpses) of their atrocities.33

Third, on August 4, Truman appointed Douglas MacArthur (General of the U.S. Army since December 18, 1944) to be the SCAP. In that role, MacArthur oversaw the Allied occupation of Japan, which commenced on August 28, including the transitional justice system. MacArthur’s broad authority essentially rendered him the dictator, or “American Caesar,” of postwar Japan.34 Truman eventually relieved MacArthur of his command as SCAP on April 11, 1951, because of insubordination.35 However, by that time, the IMTFE had concluded, and so MacArthur was the only SCAP to possess and use all of the powers of appointment and judicial review enumerated in the IMTFE’s Charter.36 The Allies would occupy Japan until all parties signed a peace treaty in San Francisco on April 8, 1952.37

Fourth, Japanese political and military officials engaged in mass suicides during this eventful month. They presumably did so because they felt guilty for their collective crimes, they were ashamed of their defeat by the Allies, they wanted to demonstrate their loyalty to their conquered leaders, or they wanted to avoid being held accountable by the Allies. Other Japanese either faked or, in the case of Tojo, failed in their attempts to commit suicide. In total, over 1000 Japanese committed suicide, usually using pistol, poison, or pointed blade.38

The following month also proved decisive for efforts to pursue transitional justice in Japan. On September 2, more than two weeks after unconditionally surrendering, Japan accepted all of the remaining Potsdam Declaration provisions at a ceremony aboard the USS Missouri in Tokyo Bay.39 Four days later, the USG issued a “Statement of the Initial Surrender Policy for Japan,” proclaiming:

Persons charged by the [SCAP] or appropriate United Nations Agencies with being war criminals, including those charged with having visited cruelties upon United Nations prisoners or other nationals, shall be arrested, tried[,] and if convicted, punished. Those wanted by another of the United Nations for offenses against its nationals, shall, if not wanted for trial or as witnesses or otherwise by the [SCAP], be turned over to the custody of such other nation.40

This statement clarified that the USG and its allies had selected prosecution as the general transitional justice option and that MacArthur would exercise primary jurisdiction over all Japanese suspects. Like the Potsdam Declaration, this statement explicitly and exclusively mentioned citizens of the United States and its allies among the United Nations as alleged victims. Two days later, on September 8, MacArthur established his office in Tokyo.41

Later that month, on September 22, the U.S. Joint Chiefs of Staff, at the direction of Truman and with the approval of all governments occupying Japan, sent orders to MacArthur to create an international military tribunal for prosecuting alleged Japanese atrocities. The Joint Chiefs also instructed MacArthur to apprehend, investigate, prosecute, and—if convicted—punish Japanese suspects, who were to be divided into three classes. Class A war criminals were suspected of committing the most egregious offenses: planning, initiating, and waging aggressive war; Class B war criminals allegedly committed conventional war crimes; and Class C war criminals were suspected of committing crimes against humanity.42

 
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