C. THE APPOINTMENT OF A NON-AMERICAN AS PRESIDENT OF THE INTERNATIONAL MILITARY TRIBUNAL for The Far EAsT
A particularly puzzling feature of the establishment of the IMTFE was the selection of its president. Why did MacArthur, who, according to the IMTFE Charter held the unilateral power to appoint whomever he wished, select a non-American (Webb) to serve as the head jurist and presiding officer of the tribunal? MacArthur’s choice is especially unanticipated given the following circumstances: (1) MacArthur need not have consulted any other state in this appointment, (2) the tribunal’s president held significant power because his vote could break any ties in the tribunal’s decisions and judgments (including convictions and sentences),194 and (3) the IMT already featured a non-American (U.K. Colonel Sir Geoffrey Lawrence) as its president.195
MacArthur initially did, in fact, plan to appoint the American judge as the IMTFE’s president. However, that plan was foiled by Keenan’s outrage at the selection of Higgins, whom Keenan did not consider prominent enough to assume his seat on the IMTFE’s bench. Keenan had instead lobbied for the appointment of any of the following, in descending order of preference: Willis Smith, president of the American Bar Association; Roscoe Pound, dean of Harvard Law School; a federal appellate judge; or a military official holding a rank no less than major general.196 In Keenan’s view, the selection of a member of the Superior Court of Massachusetts was not on par with the prestige and position of the nominees from each of the other states represented on the IMTFE’s bench, or the USG’s own senior members of the IMT. Indeed, the chief prosecutor, Jackson, was a member of the U.S. Supreme Court, and one of the judges, Francis Biddle, was the U.S. attorney general.
By the time MacArthur was to appoint the IMTFE’s president, the USG’s allies had already expressed interest in playing a more direct and prominent role in post-conflict occupation and transitional justice issues in Japan; several of them had recently lobbied for a more directly and officially involved FEC to replace the FEAC. Precisely because MacArthur had already appointed an American to be the IMTFE’s single chief prosecutor, the only senior role left to fill with a non-American was the tribunal’s president. If MacArthur wanted to accommodate the USG’s allies by broadening the decision-making authority of transitional justice for Japan and to dampen allegations and criticisms that the process was dominated by the USG, this was the prime opportunity.
MacArthur was familiar with Webb’s work and views on Japanese atrocities. Webb had been involved in the Australian War Crimes Commission, through which, between 1943 and 1945, he produced three prominent reports on Japanese wartime atrocities.197 Webb’s home country of Australia had been a victim of Japanese atrocities, and it was a strong ally of and had a similar judicial system (at least more so than Asian states) to the United States. Perhaps most crucially, Webb was MacArthur’s personal friend.198 MacArthur was therefore sufficiently informed about Webb’s background and views to be reasonably confident that Webb would preside similarly to any American jurist MacArthur would otherwise appoint. And, just in case, MacArthur appointed Cramer (Higgins’s successor as the American representative on the IMTFE’s bench) to be the tribunal’s acting president whenever Webb was absent or otherwise unable or unwilling to carry out his duties.199 Webb was therefore the ideal candidate to make the tribunal appear less dominated by the USG without really losing much, if any, USG influence or violating MacArthur’s assumptions about how the bench would behave and rule.