Volume #13 - 170.|
RÈGLEMENT DE LA PAIX AVEC LE JAPON
CRIMES DE GUERRE
Note de la Direction juridique|
pour la Conférence du Commonwealth, Canberra
le 18 août 1947|
JAPANESE PEACE SETTLEMENT: "WAR CRIMINALS"|
A—Canada's Participation to Date:
1. The United Nations War Crimes Commission together with its Collateral Commission for the Investigation of War Crimes was set up in October, 1943 with the primary objects of investigating and recording the evidence of war crimes, identifying when possible the individuals responsible, reporting to the Government concerned cases in which it appears that adequate evidence may be expected to be forthcoming, and, as extended later, giving of advice to Governments on technical questions of law and procedure. This work was regarded as an essential preliminary to ensure the just and orderly trial of war criminals.
2. In connection with this Commission, several countries decided at the same time, in view of the considerable number of atrocities committed either on their respective soil, or against their respective nationals, to create a special national organization to cope with the problem. It is for that reason that we founded a War Crime Bureau in France, an Enemy War Crimes Investigation Committee in China, a Special Investigation Organization in Russia, and a War Crimes Investigation Unit at the Canadian Military Headquarters in London, working in collaboration with the War Crimes Section of National Defence in Ottawa, and with the Canadian War Crimes Advisory Committee.
3. This first step was followed by the Moscow Declaration on German atrocities of 1943, which laid down that at the time of granting the Armistice to Germany (and to Japan) the handing over of war criminals should be required in order that they might be sent back to the countries in which their crimes had been committed to be judged and punished according to the laws of those countries. The Declaration redefined and made concrete the principles and procedure which were to he applied to the prosecution and trial of the war criminals, and was also to be utilized to show the German (and Japanese) people the firm resolution of bringing war criminals to justice. On the other hand it gave assurance against unorganized revenge.
4. As it was apparent, however, that in certain cases, the National Courts would be inadequate to deal with war crimes, for the ordinary rules and procedures would not be adaptable to the extraordinary circumstances in which the crimes were committed, it was advocated that special United Nations Tribunals or mixed Allied Military Tribunals for the trial of enemy nationals alleged to have been involved in atrocities should be organized and established. Certain cases indeed would have to be tried before special United Nations Tribunals, rather than by National Courts.
5. While the United Nations War Crimes Commission had jurisdiction over, and was responsible for, all war crimes committed in the European sector as well as the Eastern area, a plan was approved providing for joint military investigation and prosecution by all interested countries of Japanese war criminals, with the Supreme Commander in the Far East establishing International Military Tribunals for the trials. The organization in the field for the prosecution of war criminals under the jurisdiction of General MacArthur consisted of a unit of his special staff, known as the Legal Section, of which Colonel A.C. Carpenter was the chief. Any other country, however, whose nationals had been victims of atrocities were given the right to assist in prosecuting cases involving such atrocities by providing members for the Military Commission trying the cases, and also the members of the Prosecution Staff. This permitted some sort of centralization in one office of the work of all nations concerned in those crimes.
6. It was for that purpose that the Canadian Government created a Crimes Advisory Committee which was to work with the various similar organizations in other countries, like in the United States and the United Kingdom, and which would especially direct its activities towards the question of Far Eastern War Crimes. It may be pointed out here that though the examination of the Charter of the International Military Tribunal in the Far East did not indicate any connection between it and the United Nations War Crimes Commission, it still came under the latter's jurisdiction as the United Nations War Crimes Commission had been created for dealing with war crimes in all theatres.
7. Meanwhile, a preliminary screening of reports from liberated prisoners of war from the Far East had been carried on by officers of National Defence.
8. In November, 1945 the United States put forward some proposals for dealing with Far Eastern war criminals of all grades, which proposals the Canadian Government soon afterwards accepted. These proposals considered three classes of trials of war criminals, as follows:
Type 1 (a) Trials of those responsible for conspiracy to break the peace.
Type 1 (b) Trials of those responsible for atrocities during occupation.
Type I (c) Trials of those responsible for individual acts of atrocities.
9. It was understood then that the job of dealing with the first two classes would rest principally upon the United States, seconded by the British authorities. The Canadian Government would mainly deal with the third category, namely Type 1 (c), since Canada would not be setting up its own military courts. Indeed, as Canada was not going to bean occupying force we were to depend on the British or the United States authorities to convene courts for the trial of any cases which Canada was interested in prosecuting. In those cases Canada was required to prepare the case and provide a prosecuting officer. However, Canada was permitted to have a military representative on the court if this was desired.
10. As far as the Canadian Government was concerned it was also decided, when the case of the Canadian-born Japanese Kanao Inouye came up for trial under the Canadian Treachery Act, that all cases of Far East war criminals would be dealt with in Japan or Hong Kong.
11. Moreover, as by international law, a belligerent as such may try and punish war criminals, that there must also be trial before punishment, and that the belligerent may make provision in a manner appropriate to its jurisprudence for the procedure to be followed at such trials, it became evident that the Canadian Government needed a proper vehicle for giving itself the power of carrying on this obligation and to provide for the punishment of enemy war criminals by Canadian military courts and authorities, this was resolved by the passing, under the War Measures Act, of the War Crimes Regulations on September 10, 1945.
12. The frame of the Organization having been set up, it was now a question of sending the appropriate officers within this organization as to have Canada represented as one of the Allies, as Canada had also to share with the other nations the general responsibility of ensuring the proper trial of the Far East war criminals.
13. The Canadian Army supplied most of the men for these proceedings by sending a group of eight officers and two warrant-officers, all engaged in the trial and prosecution of Japanese war criminals on behalf of the Canadian Government. Brigadier H.G. Nolan was sent to Japan as associate prosecutor of the Major War Crimes Trials while Colonel Thomas Moss, M.C.,K.C., (who was later replaced, because of ill health, by Lieutenant-Colonel Griffin) was appointed at the request of the Government of the United States as law member of military commissions trying lesser war criminals, together with Major J.T. Loranger who was detailed to Hong Kong at the request of the Government of the United Kingdom.
14. The whole body of the Canadian officers was designated as the Canadian War Crimes Liaison Detachment in Japan, working before the military commissions with a Sub-Detacnment in Hong Kong. Also in order to give to the Military Tribunal some sort of an "international flavour" in the trying of major Japanese war criminals, Canada was also invited to have a member on the International Tribunal, and the Honourable, Mr. Justice E.S. MacDougall was appointed for that position. This organization and the personnel has remained pretty well the same ever since its appointment, and by May, 1947 Canada had three classes of persons concerned with the Trials of war criminals in the Pacific area:
(a) Those participating in the trial of major Far Eastern war criminals;
Honourable Mr. Justice E.S. MacDougall (Judge) Brigadier H.G. Nolan (Prosecutor)
(b) Canadian investigation team in Tokyo under Lieutenant-Colonel J.F. Orr with a Sub-Detachment in Hong Kong.
(c) Military Judicial officers whose duties were to participate in the trials of lesser war criminals, represented in Tokyo by Lt. Col. M.J. Griffin and in Hong Kong by Major J.T. Loranger as members of the United States and United Kingdom Military Courts respectively.
15. As this memo is being written, the following situation exists with regard to those three classes of persons mentioned above:
(a) The International Military Tribunal, (major Far Eastern War Criminals) is adjourned from June 23 to the end of August, acting on the motion of the Defence that they need time to prepare for a Pacific phase. Earlier this year, the Defence also succeeded in securing three weeks adjournment on similar grounds. We nave been informed that Defence tactics are to drag out the trial interminably, and this last adjournment will more likely result in protracting the trial for at least another three months. The trial of Premier Tojo et al is not expected to terminate earlier than the end of 1947 and possibly may extend into 1948. Upon its completion, there will no doubt be the usual process of confirmation of sentence, appeals from sentence, pleas for clemency, and so on.
(b) It was announced on May 16, 1947 that the Canadian Division of the Legal Section (Investigation Team) composed of five Canadian officers, under the command of Lieutenant-Colonel J.F. Off had completed their work on the minor war crimes trials in Japan and subsequently they sailed for Canada. During the period of the year ending in April, 1947 Lieutenant-Colonel Orr and his officers took part in the prosecution of a total of forty-seven war criminals in Japan. There were six common trials involving twenty-five defendants and twenty-two individual trials. The sentences varied from several years to twenty, thirty and forty years, and to hanging. These criminals were the Japanese that the prisoners of war came in personal contact with. They were camp commanders, camp staffs and guards.
Major G.B. Puddicombe, in charge of the Canadian Sub-Detachment in Hong Kong acted as prosecutor during the same period and secured convictions against eleven war criminals. Five of these were tried at one time in a very lengthy camp trial. The total therefore of war criminals tried and sentenced in the Far East and in whom Canada was vitally interested is fifty-eight.
Aside from prosecuting cases, this Canadian Division also acted as a liaison between the Legal Section and the repatriated Canadian prisoners of War.
(c) Any substantial Canadian interest in the trials involving lesser war criminals has ceased, and full retribution in the form of sentences of hanging and long imprisonment has been exacted from the Japanese war criminals who were particularly culpable in respect of Canadian prisoners of war. In fact, it is so that the withdrawal of our representative in Japan, Lieut-Col. Griffin, has been agreed upon by the Department of National Defence with the concurrence of the Department of External Affairs and the U.S. authorities, without a replacement being necessary, and our representative at Hong Kong, Major J.T. Loranger might remain there, only because requested by the U.K. Government, with the possibility of being appointed President of the British War Crimes Court in Hong Kong.
16. In view of the above, it may therefore ne concluded that as far as Canada is concerned, all the accused war criminals in which we had a special interest nave now been tried and sentenced in Japan and Hong Kong; there remain approximately thirty cases in Japan in which Canada is concerned to a slignt extent. They will be prosecuted by representatives of tne United States, United Kingdom, and other nations against whose nationals the great bulk of tneir particular crimes were alleged to have been committed. These cases have been taken care of by handing over affidavits of Canadian prisoners of war, and other material, with relevant documents, to the American Group who, being the parties primarily interested, are conducting the actual prosecution. There is finally a Japanese Major General in Hong Kong against whom there are Canadian specifications and who will be tried by the British Military Tribunal in that city.
As experience has demonstrated that investigation of a case against a particular war criminal discloses the probability that lesser war crimes had been committed by others, usually subordinate to the party under investigation, and that this state of affairs could progress "ad infinitum", the United Kingdom authorities at the beginning of 1947 decided to release minor Japanese war criminals which action was agreed to by the Canadian authorities, diminishing thereby considerably the cases in which we would have been interested.
A copy of an article on War Crimes Trials,t written by Major W.P. McClemont, E.D. of the Directorate of Administration in the Branch of the Adjutant-General, Canadian Army Headquarters, has been attached to this memo for reference by the Delegation; the interesting detailed information contained in it may be useful in completing the general outline of this memo.
B-Possible Provisions for the Japanese Peace Treaty:
17. It would appear from the foregoing that the responsibility still to be assumed by Canada in this question of war criminals in the Far East, and particularly with regard to the coming Peace Treaty with Japan, would be as follows:
(a) To ensure that the Peace Treaty contains the necessary general clauses with respect to Japanese war criminals still to be tried by other countries, or who might unexpectedly still have to be tried for crimes against Canadians, and which would guarantee therefrom the establishment and maintenance of international law and order - in demonstrating that war crimes do not pay.
On that point it has been suggested by Lieutenant Colonel Orr that though the definition of war crimes appeared to be well understood in text books on military and international law, some general recognition of the definition on the part of the Japanese would be most desirable. In other words, the Japanese should admit the existence of war crimes as such in the Treaty and should further admit that their nationals had committed them and that it was equitable as well as just that such persons should have been tried for these crimes, and finally that their convictions and sentences were a logical result of their unlawful actions.
It should be noted indeed that the Japanese were not signatories to the Geneva Convention prior to World War II and that they do not therefore consider that what we define as war crimes are anything other than the operations of war. Accordingly, the greatest care should be taken to have them admit the unlawfulness of war crimes and the justice of prosecuting the perpetrators of them.
(b) That the Peace Treaty also contains the necessary clauses which would bring about the detailed legal implementation of what had already been done on the matter. This would imply:
(i) That all convictions and sentences should be confirmed by the Treaty in some general terms and that it would be desirable to have the Japanese signify their full acceptance and agreement of what has taken place in respect of war crimes trials, and the present and future disposition of war criminals.
(ii) That the serving of sentences should be carried out in full, once they have been confirmed by military authorities. We have been informed, however, that this confirmation has not yet taken place.
(iii) That limited amnesty along broader lines than that already suggested by the United Kingdom might be desirable. This should include all crimes not likely to merit capital punishment. In the same direction, sentences might be mitigated by the application of any existing local laws of general application; it should be remembered, however, that, in this regard, Japanese law is quite generous in remitting sentences after a portion of same has been served.
(iv) That all sentences imposed in Japan be served in that country.
In connection with the question of amnesty, special reference was made by Lieutenant-Colonel Orr of the Department of National Defence to Lieutenant Kato from Niigata Camp, to the persons responsible for the murder of Canadian priests in the Philippines, and to the persons responsible for the execution of Flying Officer Siddall R.A.F. and Warrant Officers Low and Smith, R.C.A.F. These are the types of war criminals to whom such amnesty should not be made applicable and in respect of whom the honour of Canada should demand punishment. It might be mentioned here that some of tnese war criminals have been recently apprehended, but that the preparation of the cases against them is not fully complete, nor have they been too well identified. In the case of the Philippine priests, the suspected criminals have not yet been apprehended.
(c) That provisions be made for the question of the property of war criminals which has been impounded and blocked in accordance with the basic directive issued by the Post-Surrender Military Government. Though this question will most probably be handled by the U.S. authorities, it would be appropriate for Canada to be in a position to discuss the matter, especially with reference to confidential memorandum F.E.C.-204/I, March 10, 1947, copies of which are attached.t
18. It may be noted that in the Instrument of Japan's Surrender signed at Tokyo Bay, 1945 the only mention of war criminals was made by the fact that the Japanese signatories accepted the provisions set forth at Potsdam, namely tne Potsdam Declaration of July, 1945 which provided for the dealing of all war crimes by the Allied powers. It read as follows:
"We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals including those who have visited cruelties upon our prisoners."
The terms in the Instrument of Japan's Surrender with regard to this point may be found in the attached copy of same.†
19. Its acceptance did, of course, leave complete freedom to the Allies in the question of the trial of Japanese war criminals as well as in the insertion of whichever clause they would think best to insert into the coming Treaty of Peace with Japan. In this connection, it might be useful, however, to mention Article 45 of the Peace Treaty with Italy with regard to war criminals which would appear to be presumably the best precedent for the case in question, and which has so far proved to be quite satisfactory for dealing with the problem in Italy. The text states indeed:
1. Italy shall take all necessary steps to ensure the apprehension and surrender for trial of:
(a) Persons accused of having committed, ordered or abetted war crimes and crimes against peace or humanity;
(b) Nationals of any Allied or Associated Power accused of having violated their national law by treason or collaboration with the enemy during the war.
2. At the request of the United Nations Government concerned, Italy shall likewise make available as witnesses persons within its jurisdiction, whose evidence is required for the trial of the persons referred to in paragraph 1 of this Article.
3. Any disagreement concerning the application of the provisions of paragraphs  and 2 of this Article shall be referred by any of the Governments concerned to the Ambassador in Rome of the Soviet Union, of the United Kingdom, of the United States of America, and of France, who will reach agreement with regard to the difficulty."
20. To sum up, it may be said that the following points should particularly retain the attention of the Canadian Delegation throughout the Canberra discussions:
(a) To bear in mind that Canada has never taken an over-active interest in the United Nations War Crimes Commission, though we always have had a representative on this Organization;
(b) That the Canadian interest in enemy war crimes in the Far East has never been so extensive as that of other countries like the United States of America, Australia, China and the United Kingdom.
(c) That therefore Canada's interests in the matter are much more of a general nature than of specific obligations, namely the maintenance of international law and order and the safeguarding of the accepted laws and usages of war together with the proper application of justice.
(d) Accordingly, it would be appropriate for the Canadian Delegation not to take the lead in the discussion of this particular subject, but to give its support to, and informally approve, any proposal which would appear to guarantee the maintenance of the above mentioned principles of international law and order and to assure the application of the various points outlined in paragraph 17 of this memorandum.