III. The United States Role in “Tokyo”
The United States was the most critical actor in what became known as “Tokyo.” The USG served as the foremost proponent and host of discussions leading to the creation of the IMTFE, including by successfully lobbying for the creation of the UNWCC’s Special Far Eastern and Pacific Committee. The 1945 Moscow Agreement laid out the general role of the USG in postwar Japan’s occupation, including its transitional justice process. This function included, inter alia, the USG’s responsibilities with respect to the FEC. The USG was tasked with hosting the FEC’s headquarters in Washington, DC, and, on behalf of the four signatories to the Moscow Agreement, presenting the Terms of Reference of the FEC to other specified governments and inviting them to participate.142
The USG was responsible for producing the initial draft of the IMTFE Charter and then for lobbying the other Allies to accept it with minimal changes.143 As such, the USG effectively made all of the design decisions, modeled on the IMT, and then presented its plan to the other Allies as a fait accompli. Yves Beigbeder, who served as legal secretary to the IMT’s French judge, thus calls the IMTFE
Charter “essentially an American project.”144 The USG also asserted its cultural dominance in the design of the IMTFE, by having English serve as the only official language other than Japanese, and in having so much of the tribunal’s design and operation based on the American system of law and criminal justice (as represented in the IMT, as well).145 The USG had such significant—even unilateral— authority over the transitional justice process for Japan largely because of the practical fact that it led the Japanese occupation, at least in the short-term. As Dower recounts of the September 1945 USG orders to MacArthur,
The original directives, although known and approved by the other allied nations, represented unilateral action on the part of the United States. This method of operation was not limited to the question of war crimes. It was a temporary device for conducting a joint occupation under the command of a national of one of the allied nations until the j oint machinery for carrying on such an occupation could be perfected.146
The USG dominated prosecution at the IMTFE. An American served as the sole chief prosecutor, and Americans comprised not only the plurality of nationalities represented on the IPS’s Executive Committee, but also half of the IPS itself.147 The USG provided the first legal staff to arrive in Tokyo, thus leading the early work of the IMTFE.148 Furthermore, the USG supplied a significant share of eyewitnesses, experts, and senior political and military officials who testified at the IMTFE.149
The USG also contributed a great amount of assistance to the IMTFE defendants. Unlike at the IMT, the USG furnished Americans to serve as defense counsel alongside the Japanese at the IMTFE. Not only did the USG pay the salaries of all American defense counsel, but it also spent millions of U.S. dollars on the transportation and accommodation of all defense counsel in their overseas trips (to China, Germany, the United Kingdom, and the United States) to obtain evidence and locate witnesses.150 As such, the USG involvement in the defense led the Dutch judge on the IMTFE, Bernard Roling, to conclude that “[t]he Americans ... dominated the defen[s]e ... .”151 Furthermore, the USG saved Tojo’s life after his failed suicide attempt.152 As Arnold Brackman, a journalist who covered the IMTFE trials, reported on the incident: “The tough old warrior was rushed to a U.S. Army field hospital and given transfusions of American blood.”153
In addition to dominating the prosecution and arguably also the defense, the USG eventually would lead the most important aspect of the bench. For reasons unknown (because they are not documented), the power of presiding over the drafting of the IMTFE’s decision shifted from the Australian chief judge/pres- ident, Webb, to the American judge, Cramer, who chaired the seven-member Majority Drafting Committee.154
Perhaps the most obvious way that the USG dominated the establishment of the IMTFE was the fact that a senior American military officer served as the SCAP. As Piccigallo observes, the IMTFE “functioned throughout under the all-pervading shadow of SCAP.”155 The IMTFE provided enormous powers to MacArthur. He was responsible for appointing most of the senior officers of the tribunal: the judges,156 including the president (chief judge) of the tribunal,157 the General Secretary,158 and the Chief of Counsel (chief prosecutor).159 In addition to choosing, as noted, an American to serve as chief prosecutor, MacArthur also chose an American, Colonel Vern Walbridge, to serve as the General Secretary.160 The USG (through MacArthur) also possessed the right to refuse all other staffing decisions, such as appointments for IPS associate prosecutors from the other member states of the FEC. In addition, MacArthur could exercise judicial review, so he literally held the power to make decisions over life and death.161 In this sense, MacArthur therefore wielded a power similar to that in the United States of a governor or the president to grant clemency for a convict on death row. As yet another example of USG influence over the IMTFE, the chairman of the ACJ, which consulted with MacArthur during the sentencing review process, was William Sebald, the U.S. representative.162 Moreover, it was the USG that made the decision to release the remaining Class A war criminals who were not indicted by the IMTFE.163
The USG therefore was the most crucial actor in the establishment of the IMTFE. As political scientist Howard Ball argues: “The United States was the prime mover in the creation and implementation of the [IMTFE].”164 Dower concurs, arguing, “the American control of prosecution policy and strategy bordered on the absolute.”165 Some tribunal participants agree. As Roling observes, the IMTFE “was very much an American performance ... .”166 Even those who reviewed appeals from the IMTFE shared these sentiments. As U.S. Supreme Court Justice William Douglas observed, “the [IMTFE] is dominated by American influence ... .”167 The fact of U.S. supremacy was not lost on the other countries participating in establishing these trials. Anticipating criticisms of the USG’s heavy influence, these other states also proactively sought to undermine this charge for fear of how the perception might affect the IMTFE’s functioning and success. Referring to whatever courts (including the IMTFE) the SCAP created, the FEC urged that the “international character of the courts and of the authority by which they were appointed and under which they act should be properly recognized and emphasized, particularly in dealings with the Japanese people.”168
Some analysts even suggest that the USG’s dominance in the establishment of the IMTFE was so great that it defined the tribunal itself. First, some argue that the IMTFE was a misnomer. As Dower contends,
The top-level war-crimes trials that accompanied the occupation, formally known as the International Military Tribunal for the Far East . . . were misleadingly named. An international panel of judges did preside and the president of the tribunal was Australian, but the Tokyo trial was a predominantly American show. Americans dominated the [IPS] that set the agenda for the tribunal, and they brooked scant internal dissent from other national contingents.169
Others claim that the USG’s dominance of the IMTFE exceeded that of the IMT. As commentator Wu Tianwei states: “Although the United States played a major role in both the Nuremberg and Tokyo trials, having had her legal views and opinions well pronounced, she virtually dominated the latter, in which her policy toward Japan took precedence.”170 The IMTFE appears to be one of—if not the— most unilateral, in terms of the establishment, design, staffing, and procedure of all ICTs ever created. Consequently, the United States would forever be linked with evaluations of the IMTFE. As IMTFE defense counsel Ben Blakeney, an American, argues, “it is to the United States that will inure, in great measure, the credit or discredit which history will attach to the proceedings of the [IMTFE]— and not history only, but contemporary opinion.”171
Beyond the USG writ large, the role of individual USG officials in the establishment of the IMTFE cannot be overstated. As the IMT served as the model for the IMTFE, all of those who contributed to the establishment of the IMT thus implicitly contributed to the creation of the IMTFE. Those individuals include Bernays, Jackson, Stimson, Morgenthau, Jr., FDR, and Truman. In the case of the IMTFE, several other individuals made important contributions. Pell, as the U.S. representative on the UNWCC, prompted the coordinated international investigation of alleged Japanese atrocities by successfully lobbying for the establishment of the UNWCC’s Special Far Eastern and Pacific Committee. Pell’s leadership was so widely known that international efforts to investigate alleged Japanese atrocities were referred to by some American allies as “Pell’s cause.”172 Keenan played an incalculably critical role in leading the IMTFE’s investigation and prosecution, and in negotiating decisions on which Japanese to indict in the first place.173 MacArthur’s influence was felt through his various establishment, appointment, and review powers. Also, although Keenan led the Allied decision-making on which Japanese to indict, MacArthur (in consultation with Truman and other senior USG officials) made the decision against indicting Hirohito.174 The individual justices of the U.S. Supreme Court played a critical role in deciding against reviewing the IMTFE’s judgment. Finally, Truman decided to appoint MacArthur as the SCAP and issued numerous directives to him, thus overseeing the overall establishment and operation of the IMTFE.
Besides the United States, certain other states played important roles in the establishment of the IMTFE. According to Horwitz, the IMTFE indictment “was largely a British document,” owing in large part to the fact that the U.K.’s associate prosecutor, Arthur Comyns-Carr, headed the subcommittee tasked with preparing the charging document.175 The United Kingdom also exercised significant influence because Comyns-Carr chaired the chief prosecutor’s Executive Committee, which oversaw the selection of IMTFE defendants.176 In addition, Australia significantly impacted the proceedings, as MacArthur appointed its representative on the bench to be the IMTFE’s president. Finally, as the IMTFE’s Charter was almost wholly a copy of the IMT’s Charter, those states involved in drafting the latter document—France, the Soviet Union, the United Kingdom, and the United States—implicitly contributed to drafting the former document.