Early-1946: Establishment of the International Military Tribunal for the Far East
The IMTFE Charter, based in large part on the IMT Charter, was established by MacArthur’s order on January 19, 1946.61 USG officials, particularly Keenan, initially drafted the IMTFE Charter; the USG consulted its allies about the document only after MacArthur issued it.62 The IMTFE’s Rules of Procedure also were established on January 19 and were promulgated by the IMTFE on April 25.63 According to Solis Horwitz, who served on the IMTFE’s prosecution staff during the trial, the USG exclusively drafted the IMTFE Charter. It did so because Keenan, as the IMTFE’s Chief of Counsel, was tasked with preparing the details of the IMTFE, and none of the associate prosecutors had arrived in Japan before the Charter was promulgated.64 However, on April 26, the Charter was amended slightly to reflect the views of the Allied delegations.65
The Charter indicated that Tokyo would be the permanent seat of the tribunal. The proceedings were held in the auditorium of the old Japanese War Ministry in the Ichigaya neighborhood of Tokyo. This venue was symbolic: it had been the auditorium of the Imperial Army Officers School and then temporary headquarters of the Japanese military during WWII.66
On February 15, MacArthur appointed eleven judges to the IMTFE,67 one nominated by each of the nine members of the Instrument of Surrender68 plus one judge each from India and the Philippine Commonwealth.69 MacArthur did not reject any of the judicial nominees.70 These eleven judges thus represented the eleven-state membership of the FEC. The first American judge was John Higgins, Chief Justice of the Superior Court of Massachusetts.71 He was compelled to return (or chose to, because, according to Dower, his qualifications had been criticized) to the United States in July 1946 and therefore resigned.72 Major General Myron Cramer, former Judge Advocate General of the U.S. Army, replaced Higgins.73 MacArthur also had the power to appoint the IMTFE’s president, or chief judge, from among the judges at-large,74 and he chose the Australian representative, Sir William Webb. Whenever Webb was absent—not an uncommon event—Cramer served as acting president.75
Four months after the IMTFE’s IPS was established, three months after the IMTFE was created, and just before the IMTFE’s proceedings started in April, an International Defense Panel was created.76 Japanese citizens and, at the request of the Japanese government to the USG, Americans, too, served as defense counsel.77
Exercising its authority with respect to the Japanese occupation, the FEC issued a statement on April 3 concerning the “Apprehension, Trial[,] and Punishment of War Criminals in the Far East,” which was communicated to MacArthur twenty days later.78 This statement basically included all of the USG’s original directives to MacArthur—apparently a mere rubber stamp of USG policy.