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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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B. THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST’S TRIALS

On April 29, 1946, Keenan and the ten associate prosecutors issued a joint indictment on behalf of all eleven states that had been at war with Japan and thus comprised the FEC.79 The indictment charged twenty-eight men80 with three sets of crimes81 (crimes against peace, war crimes, and crimes against humanity) comprising fifty-five counts.82

The IMTFE’s trial structure and procedure borrowed directly from the IMT’s.83 Opening statements preceding the arraignment, including Keenan’s introduction of the indictment, were delivered on May 3.84 What Webb called “the trial of the century”85—so momentous in his view that he believed “[t]here has been no more important criminal trial in all history”86—had commenced and would not conclude until the IMTFE’s judges rendered their verdicts two-and- a- half years later, between November 4 and November 12, 1948.87 As a result, the IMTFE’s proceedings started about a year and a half after the IMT’s began and ended approximately two years after the IMT concluded;88 the IMTFE earned the distinction at that time as “the longest continuous trial in history.”89 The trial also earned the distinction of “absorbing] one-quarter of the paper consumed by the Allied Occupation forces in Japan during the Trial.”90 The IMTFE eventually sentenced seven defendants to death by hanging,91 sixteen to life imprisonment,92 one to twenty years imprisonment,93 and one to seven years imprisonment.94

None was acquitted.95 Three individuals were not sentenced: two died during the trial,96 and one had been judged unfit for trial.97

On November 24, 1948, MacArthur affirmed the convictions.98 Some of the convicted Japanese immediately filed habeas petitions with the U.S. Supreme Court.99 On December 6, exactly three years after Keenan arrived in Tokyo, the Supreme Court approved oral argument in the matter (thus staying the sentences).100 Justice Jackson—having returned to the Supreme Court from his post as the IMT’s chief U.S. prosecutor—filed a memorandum in that decision explaining his reluctant agreement, because of his involvement in negotiating the IMT Charter and then representing the United States at that trial, to cast the tie-breaking vote.101 Oral arguments were then delivered on December 16 and 17, and the Court, without Jackson’s participation, announced its per curiam decision three days later.102 The Court denied the motions for jurisdictional reasons. Specifically, the IMTFE was an international military tribunal and thus not a U.S. court; rather, it had been established by a U.S. general (MacArthur) acting as the agent of the Allied Powers, including the USG.103 The Court reasoned that these circumstances limited the Supreme Court’s power to intervene: “[T]he courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners ... .”104 Three days later, the Japanese petitioners the IMTFE had sentenced to death were executed at their place of confinement: Sugamo Prison in the Ikebukuro district of Tokyo.105

 
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