AtoM
David Conde fonds
International Military Tribunal for the Far East
Trial transcripts
Conde, David W.
application/pdf
25 FEBRUARY 1947 I N D E X Page Opening Statement of Division I by Mr. Logan (Presented in five parts) Part II omitted Presentation of evidence of basic documents re the surrender, creation of the Tribunal, treaties and the constitutional laws and regulations of Japan by Mr. George Yamaoka Laws and Customs of War on Land presented by Mr. J. C. Howard Citations re Narcotic Agreements by Mr. A. G. Lazarus (Exhibits Nos. 17, 18 and 19) Citations re the Treaty of Portsmouth between Japan and Russia dated 5 September 1905 (Exhibit No. 21) by Mr, A. G. Lazarus Citation of Washington Treaties of 13 December 1921 (Exhibit No. 24) by Mr. George Yamaoka Citation of Nine-Power Treaty of 6 February 1922 (Exhibit No. 28) by Mr. George Yamaoka Citation of Treaty between United States, the British Empire, France, Italy and Japan re the Limitation of Naval Armaments (Exhibit No. 34) by Mr. George Yamaoka Citation of Treaty Between the United States and Other Powers providing for the Renunciation of War as an Instrument of National Policy (signed at Paris, 27 August 1922) (Exhibit No, 32) by Mr. J. C. Howard 17122 17123 17142 17184 17193 17200 17206 17210 17216 17225 17,113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Tuesday, 25 February 1947 INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST Court House of the Tribunal War Ministry Building Tokyo, Japan The Tribunal met, pursuant to adjournment, at 0930. Appaarauies: Fviv the Tribunal, same as before;. For the Prosecution Section, same r s before, For the Defense Section, same as before. The Accuseds All present except OKA'VA, Shuniei, who is represented by his counsel. » (English to Japanese and Japanese to English interpretation was made by the Language Section, IMTFE.) 17 j114 l 0 1 2 f 3 & 4 E d 5 e r 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 W MARSHAL OF THE COURT: The International Military Tribunal for tfe Far East is now in session. DR. TAKAYANAGIs Mr. President, Members of the Tribunal: Since yesterday afternoon I have been considering how I could revise my opening statement so as to comply with the requirement laid down by the President, but to my great regret I have found it physically impossible for me to do so, especially as it involves the further process of preparing a Japanese text and its presentation to the Language Section. I must therefore rely now upon the dis- cretion of the Tribunal as to the alternative either to read the typed script, with a few alterations,, or to defer it for the moment. Of course, as counsel I obey any order that the Tribunal is pleased to make; however I regard it as a serious dereliction of duty as counsel if I fail to make the following few remarks, so I do desire that the President will bear with me a little while. The defendants on whose behalf I am speak- ing think that the law of the Charter is a momentous element in the present trial; their life and death, their confinement and liberty depends in large measure upon its interpretations. 17,115 1 2 3 4 5 6 . 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE PRESIDENT: Doctor, you can not proceed along those lines. You are attempting to address the Court and you are not entitled to do so. You have prepared, no doubt, a very valuable argument, but we are not allowed to permit you to put that argument at this stage. I say we are not allowed. DR. TAKAYANAGI: May I just — THE PRESIDENT: The Charter sets out the course of procedure. DR. TAKAYANAGI: May I just — THE PRESIDENT: We must follow that course and you must follow it, and please say no more. Mr. Logan. I®. LOGAN: The opening statement, your Honor. THE PRESIDENT: Mr. Cunningham. MR. CUNNINGHAM: If the Tribunal please, before Mr. Logan makes his opening statement I would like to call to the attention of the Tribunal that I would like to object to one part before it is read and ask that it be deleted. I refer to page 6, begin- | ning with the word "judicial notice," and ending on the bottom of page 6 with the word "conspirators" -- "co-conspirators." I object to this part of the statement for I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j116 the reason that it is not relevant to the issues in this case and it doesn't forecast any proof which is material to this cause. Neither — it pertains to the trial — it pertains to the trial at Nuern- berg, which is not a matter in issue here, and neither is the analogy in fact a question here. I ask the Court to direct counsel to delete that part of bis opening statement before he delivers it. THE PRESIDENT: How does it affect your client, Mr. Cunningham? MR. CUNNINGHAM: It asks the Court to take judicial notice that a conspiracy existed in Germany and that the Court distinguish between this case and the case in Nuernberg. My client being ambassador in Germany, it reflects unfavorably, to say the least, upon the association between the two nations, Germany and Japan, and we should not be in a position here where we are re-trying the issues involved in the Nuernberg case. We are only trying the issues involved here. THE PRESIDENT: Mr. Tavenner, you desire to address the Court, I believe. MR. TAVENNER: I have no desire to address the Court on that subject. I do desire, however, to 1 2 3 4 5 6 7 8 9 10 n 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, point out to the Tribunal that in the opening state- ment proposed to be made that there are several objections we would like to make to Part II, appear- ing on page 4. This part relates to evidence of the acts and declaration of other nations regarding treaties as creating international law, absence of individual responsibility, diplomatic immunity, and nature of crimes charged. The first objection is that the treatment of this subject offends the ruling of the Court of yesterday regarding matters previously argued. T; e second and most important objection is that in the first paragraph, in particular reference is made to action by other nations in the performance of treaty obligations or in their failure to perform treaty obligations, which could not be issues involved in this trial. THT PRESIDENT: No, we are not trying those nations or any individuals belonging to them. MR. CUNNINGHAM: It would result in a need- less prolongation of this trial should those issues be permitted to be raised in the course of this trial. 17,118 l 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 1.9 20 21 22 23 24 25 THE PRESIDENT: I think one writer on constitutional law, Oppemheim or Lauterpacht, does say or does suggest that the Pact of Paris, I think it is, is not binding because it has been broken by other nations. However, as you say, we are not trying Russia or Britain and they are the nations mentioned in the paragraph to which you object. MR, TAVENNER: If it pleas" the Tribunal, that being our position, we desire to move that that part of the opening statement be deleted. THE PRESIDENT: Are you objecting to the whole of II or just to the first paragraph? MR. TAVENNER: We are objecting to the whole of Section II on the ground that it offends the rule issued yesterday, and we are objecting specifically as to paragraphs 1 and 3 on the second ground mentioned, IE. LOGAN: If the Tribunal please, I might point out that those examples set forth there are not complete. I say, among others, we have other examples that we intend to offer as proof. We don't propose to argue the legality or the admissibility of this evidence at the present time and we don't think that it is within the province of the Tribunal to pass on the materiality or relevancy of our proposed facts that we interim to prove at this time. My understanding 17,119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is, if the Tribunal please, from past rulings that these opening statements are designed to inform the Tribunal — THE MONITOR: Mr. Logan, operation of the red light is out of order, so will you pause at each sentence- please? MR. LOGAN: We do not understand in offering an opening statement that the Tribunal is at that time intending to pass on the relevancy or the materiality of the documents or evidence which we will offer later. We are not so much concerned with the acts set forth in our opening statement, as the acts themselves, as we are with the views taken of those acts by other nations. We think it will be of assistance to the Tribunal to find out how other nations interpreted these very treaties upon which the prosecution is basing its cause of action here. If it is the purpose of the Tribunal to pass on the materiality or relevancy of the evidence we intend to offer, merely on an open- ing statement, I will withdraw the statement. I don't think we have gone beyond the bounds of an opening statement. We set forth, as we view it, very clearly and concisely what we intend to prove, the facts and the evidence that we intend to offer. I don't see anything obnoxious about the statement itself. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j120 THE PRESIDENT: You offer that as contemiDoranea exuositio. I suppose, as showing the attitude of the nations to the treaty and thereby getting its correct interpretation from that attitude at the time? Not saying, in effect, if the Japanese were burglars there were other burglars as well? That is not your attitude? m . LOGAN: Oh, no. Oh, no. We don't contend in either event, your Honor. THE PRESIDENT: Well, you are offering this as bearing on the interpretation — MR. LOGAN: That is right. THE PRESIDENT: — of the Pact of Paris. MR. LOGAN: If the Tribunal please, you will also note we have there other acts too. These are only some of them as set forth there. THE PRESIDENT: Well, proceed to read what you have written, except that chapter. We will give a decision on that later. MR. LOGAN: If the Tribunal please, if your ruling is intended to restrict our proof I will withdraw the entire statement and we will offer the proof and let the Court rule on it as it is offered, to the materiality and relevancy at that time. I would also like to point out to the Tribunal that when the prosecution read their statements, their 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j121 opening statements, they were permitted to read them entirely and that after they were read the Tribunal struck out parts of them, which parts we don't know, but they said they would disregard certain parts of them. THE PRESIDENT: You said you would withdraw something, Mr. Logan. What you meant was you would not read it. You have nothing to withdraw. You have not read it. MR. LOGAN: That is right. With all due respect to the Tribunal, we ask that the same ruling be followed with respect to the reading of our opening ! statements as was followed by the prosecution where they: were permitted to read them, even though we did object to them. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j122 THE PRESIDENT; We have not come to any decision yet, Mr. Logan. You have rendered it un- necessary for us to come to a decision. We are not discriminating against you as you suggest, but we must hear argument, of course. MR. LOGAN: If it is the Tribunal's decision that they will not pass upon the materiality or the relevancy of the evidence we intend to offer under Group II, I will omit it and read the balance of the opening statement. THE PRESIDENT: It would be unusual to pass on materiality and relevancy in the course of an opening statement. MR. LOGAN: That is right. THE PRESIDENT: However, you are prepared now to read what you have written except that par- ticular part. MR. LOGAN: With that understanding. Division I of the defense case will pro- duce evidence of a general nature showing that under the existing state of international law the charges in the Indictment must fall; that there was no con- spiracy of the accused inter se, precluding any finding of guilt for the acts and conduct of these accused on the conspiracy counts and that Japan's 17 j123 domestic conditions, coupled with encirclement by the World Powers, forced her as a last resort to fight for her very existence. This evidence will be presented in five parts: I. Evidence of basic documents relating to the surrender, the creation of the Tribunal, treat- ies and the constitutional laws and regulations of Japan. I will omit II. III. Evidence of lack of conspiracy of the accused inter se including the Greater East Asia Co-Prosperity Sphere. IV. Evidence of the national economy of Japan and the encirclement of Japan by the World Powers in the Pacific and Asia. V. Evidence of the Japanese domestic condi- tions from educational, anti-communistic and propa- ganda standpoints. The type of evidence and its subject matter to be produced in support of each of these five parts is as follows: I. EVIDENCE OF BASIC DOCUMENTS RELATING TO THE SURRENDER, THE CREATION OF Tffi TRIBUNAL, TREATIES AND THE CONSTITUTION, LAWS AND 17,124 3 4 5 6 7 8 9 10 ii! 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REGULATIONS OF JAPAN. We will read from treaties and basic docu- ments relating to the surrender, the creation and .jurisdiction of the Tribunal; treaties which the accused are charged with violating and the Japanese constitution, laws and regulations which the prose- cution introduced into evidence but did not read into the transcript. In addition, the defense will present additional treaties and other basic documents. These treaties, conventions and assurances will make clear in part Japan's position; how and why various actions and countermeasures were taken by her in past years and why she failed to act at times, explaining her position and the position of powerful countries in the family of nations. Her special interests in China and Manchuria will be shown to have been recognized and accepted by World Powers for many years. The interests she was legally charged with protecting, the steps taken on her behalf by some to defend those interests, the misinterpretation of her intentions by some nations, and the recognition, of her accomplishments by many nations will be por- trayed. It will be demonstrated that with respect 17,125 1 to Manchuria and China, national policies were 2 formed after, not "before, the occurrence of those 3 military incidents. Succeeding governments were 4 thus forced to accept conditions as they found them 5 and attempts were made to localize these incidents. 6 III. EVIDENCE OF LACK OF COMMON CONSPIRACY 1 OF THE ACCUSED INTER SE INCLUDING THE 8 GREATER EAST ASIA CO-PROSPERITY SPHERE. The prosecution's charge that these ac- cused conspired to initiate, plan and wage aggres- sive wars; to murder and to mistreat prisoners of war and civilians will be die-proven by irrefutable evidence. Further evidence on this, of necessity, will be offered throughout the trial. The evidence to be presented will con- clusively establish that the situation in Japan was entirely different than in Germany. There Hitler and his small group of followers started in 1919 and first using the 25 points of the German Labor Party and later in 1925 using "Mein Kampf" as their Bible, with a definite plan in view unaltered throughout, overcame all opposition until they seized control of the Government of Germany and con- tinued in power as its government until the termina- tion of the war. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17,126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The expressed program of Hitler and his cohorts was adjudged to be ominous including among other points an anti-Jewish provision, planned territorial expansion and premeditated disregard of treaties. It will be shown that no such provi- sions or ones even remotely resembling those were ever a national policy conspired or planned by these accused. Hitler was the dominating factor through- out. Such a personage is absent here. Throughout, he had a close group of followers. Such was not the case here. It will be shown that instead of a com- mon conspiracy in Japan, the converse is true. The military were divided; the Army opposed the Navy; i the diplomats disagreed with the Army and the Navy; the Cabinets were divided and fell with great fre- quency; the Diet was independent of governmental policies or influence of the military; military and non-military governmental officials often vio- lently disagreed with one another and some stayed in office whenever possible to fight with vigor for what they thought was right even though their opinions did not always prevail — the latter a commendable deed, and lauded by representatives of the prosecut- ing powers. It will be shown that these accused were never close enough to one another in time of holding 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j127 office to form or continue any common plan or conspiracy for the purpose of expanding the power of Japan "by aggressive war. Internal dissension in Japan precluded the formation or execution of any common conspiracy or plan as charged. Furthermore, it will be shown that the compo- sition of the cabinets of the Government of Japan was a continuously changing constituency. Since 1928, fifteen different cabinets rose and fell in Japan. Cabinets fell because of crises brought about by various events and differences of opinion between some of these very accused and between them and other officials. No two cabinets fell because of identical reasons. Many of them fell because of purely domestic reasons, unrelated to any international situation. Among the reasons for their termination are the following: The TANAKA Cabinet fell on July 1, 1929 because of internal dissension in the cabinet. The HAMAGUCHI Cabinet's fall on April 13, 1931 was due to the illness of the Prime Minister. The 2nd WAKATSUKI Cabinet fell on December 12, 1 9 3 1 because of a difference of opinion between WAKATSUKI and ADACHI, Minister of Home Affairs, with regard to whether or not the Cabinet should be a coalition form 17, of government. The INUKAI Cabinet fell on May 25, 1932 when INUKAI was assassinated by some young officers over a domestic political issue. The SAITO Cabinet fell on July 7, 1934 because of a public scandal which compromised some of the ministers and high officers of the government. The OKADA Cabinet's fall on March 8, 1936 was the result of the February 26th Incident. The fall of the HIROTA Cabinet on February 1, 1937 was occasioned by a difference of opinion between HIROTA and TERAUCHI, Minister of War, on the issue of whether the House of Representatives should be dissolved. The HAYASHI Cabinet fell on June 3, 1937 when HAYASHI dissolved the Diet. The new liet which was elected was opposed in HAYASHI's domestic policies. The 1st KONOYE Cabinet fell on January 4th, 1939 due to a difference of opinion among Cabinet members with ®gard to the anti-Comin- tern Pact. The HIRANUMA Cabinet's fall on August 29th, 1939 was due to internal dissension and the sudden and unexpected conclusion of the non-aggres- sion pact between Germany and Russia. The ABE Cabinet fell on January 15, 1940 because of the dcmestic price commodity policy and the question of whether or not the Trade Ministry should be estab- lished. The YONAI Cabinet fell on July 21, 1940 be- cause of differences of opinion concerning the formation of a new political party. The 2nd KONOYE Cabinet's fall on July 17, 194-1 was brought about by KONOYE's difference of opinion with MATSUOKA, Minister of Foreign Affairs, as to foreign negotia- tions. The 3rd KONOYE Cabinet fell on October 16, 1941 because of KONOYE's differences with TOJO with respect to American policy. The TOJO Cabinet fell on July 17, 1944 because of the trend of the war. The KOISO Cabinet's fall on April 7, 1945 was due to a difference of opinion with the Army. -The SUZUKI Cabinet's fall on August 16, 1945 came upon the completion of its duty in connection with the surrender. The HIGASHIKUNI Cabinet fell on October 6, 1945 because of post war conditions* 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 17 j130 Unlike Hitler, no one in Japan was in a con- tinuous position of control in these cabinets or in the military during the period of time covcred in the Indictment. In three of these cabinets — the TANAFA Cabinet Arril 20, 1927 to July 1, 1929; the HAMAGITCHI Cabinet, July 2, 1929 to April 13, 1931, end ^he HAYASHI Cabinet, February 2, 1937 to June 3 , 1937 — not one of the accused was in a position to control, lead or direct any conspiracy as not one of them was even a member of these cabinets, nor was any of them Chief of the Army General Staff or Navy General Staff during those times. That there could not have been a continuing common conspiracy to initiate or wage ag.-ressive war will be shown by the fact that not one of the accused was a member of any two of the cabinets which were in office at the time of the outbreak of the Hsnchurian j in September, 1931, the commencement of the China Affair in July, 1937, and the outbreak of the Pacific Far in December, 194-1. Only one accused was in the cabinet at the time of the commencement of the Manchurian Incident and none was Chief of the Army or Navy General Staff. Only two were in the cabinet at the time of commencement of the China Incident and none was Chief of the Army or Navy General Staff. Onlyj 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, four were in the csbinet at the time of Pearl Harbor end the Chief of Naval General Staff was a former accused. The evidence will show that the alleged con- spiracy had no core due to the absence of a leader who would necessarily appear in a position of dominant control in at least two out of these three significant and important periods of time — that situation is absent. During the entire period of time covered in the Indictment the national policy constantly changed, thus disproving a common continuous conspiracy. Furthermore, it will be significantly demon- strated by evidence that with respect to the charpe of conspiracy to plan aggressive wars, where ample time is necessary to make preparations, none of the accused I was in the HAMAGUCHI Cabinet which fell five months ! before the commencement of thf Manchurian Incident nor was any of them Chief of the Army or Navy General Staffs ; during the time of that cabinet. Likewise none of the accused was in the HAYASHI Cabinet which fell one month before the commencement of the China Incident nor was any of them Chief of the Army or Navy General Staff during that time. There was an absence of any agreement what- soever among the accused even remotely pointing to any common plan or conspiracy. The evidence will show 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, that true to sound principles of constitutional government, there was no planning, scheming or plottine to propose a new Prime Minster who would further any such common plan or conspiracy as is charged, or any other common conspiracy at all. The reasons why these cabinets fell and new ones rose will definitely establish that no such common conspiracy am ng these accused existed. The evidence will further show that among the accused during the period charged in the Indict- ment there was never any single group of them in a position 2f newer and influence over any extended period of time. The absence of such a group holding I important political offices or military posts of control prevented any cooperation to carry out any plan or plans for any common conspiracy or purpose as chargcd in the Indictment during the terms of office held by these accused. Individually it will be shown that they acted in no way different than would be expected or normally anticipated of the officials of any other country under similar circumstances. Evidence will be nroduccd to show that the prosecution by the use of certain labels . has magnified, distorted and misconstrued the true meaning and intent of the ii nos-uous phrases — New 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j133 Order in Fast Asia, Hekko Ichiu and Greater East Asia Co-Prosperity Sphere. It will be shown, contrary to the prosecution contention, that these phrases had no malicious or criirnal implication and d id not contem- plate military aggression; that they are just as innocent and innocuous as the phrases or implications contained within the "Good Neighbor Policy" and "'endell Wilkie's "One World." The prosecution's charge that all these accused and others were part and parcel of a common plan or conspiracy to cause cabinets to fall and pre- vent cabincts from being formed is contrary to the facts. Its contention is based on the assumption that the accused conspired to and used the Imperial Ordinance of 19&5, ss amended in 1912, and the Imperial Ordinance of 1936 for this purpose. Military influence Tor individual rather than political reasons occasionally played a part in the selection of a new Prime Minister, but it was not pursuant to any organized common plan or conspiracy by these accused. It will be shown with respect to this there never was, or could be any such a common conspiracy among all these accused, due in part to the fact they held different offices at various periods of time. Some at various times expressed different 1 2 3 4 5 6 7 8 9 LO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, ideas on this controversial issue and some were not in p sitions to act either affirmatively or negatively on the choice of a. Prime Minister, and most of them had no voice in +he selection. The evidence showing lack of conspiracy will be presented from charts, various speeches made by some of the accused and others at the time of the fall of the cabinets; by evidence of prominent Japanese statesmen; by governmental proceedings; by unimpeachable records; by publications; diary entries", speakers of the House of Representatives; interrogations of the accused; newspaper reports and proceedings of the Liaison Council and Imperial Con- ferences . IV. Evidence of the National Economy of Jsspsn and the Encirclement of Japan by the World Powers in the Pacific and Asia. We will also demonstrate in a conclusive way that there was no economic preparation by Japan for any wars in Manchuria, China, against the Soviet Union, nor in the Pacific. In the last few months before December, 1941, when it became apparent that the Pacific War was probable and later inevitable, defensive measures were taken. The economy of Japan, being an economy of scarcity, perhaps in its totality 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, and to a greater extent then many other countries, the true economic condition will be shown by impartial studies and reports. The economic condition of various basic industries such as shippin", coal, food, tex- tiles, rubber, oil, electricity, etc., will be offered to demonstrate positively that there was no economic preparation for war or any conspiracy in regard there- to. The enactment in 1932 of a Capital Flight Pre- vention Law and in 1933 of Foreign Fxchange Control Legislation were natural phenomena forced on Japan by the world wide depression and dislocation of foreign trade which was particularly acute in Japan because of progressively higher tariff walls and other trade barriers erected against her throughout most of the world. Moreover, we will show that between 1928 and € 1935 the vast majority of the trading nations of the world enacted identical or similar legislation and that such legislation as Japan enacted had no relation whatsoever to preparations by Japan for war. Japan, being a nation which must impart in large quantities in order to live, was particularly injured in her foreign trade by the Ottawa Conference decision of 1932. to grant Empire prefrence in tariff treatment, a decision which was roundly condemned by the United 17,136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 States and practically every trading nation in the world outside of the United Kingdom' . The evidence relating to the economics of Japan including Korea, will show persuasively the absence of any manipula- tion, regimentation or control for any such purpose as is alleged by the prosecution. T"e will show that prior to the Pacific irar, 80 per cent of the foreign trade of Japan was conducted with the United Kingdom, Netherlands and the United States. From this the Tribunal will be able to gauge the terrific impact of the embargo and freezing regulations of the ABCD bloc upon the economy of Japan particularly with respect to the imminent threat it offered in attempt- 4 ing to force a capitulation in China. The evidence will indicate the economic encirclement toviiich Japan was subjected. The situation in Japan and the disastrous result of such restrictions and sanctions on Japanese economy will be shown. The evidence will further point to the lack of any economic aggression preparatory to waging any alleged aggressive wars by these accused or any conspiracy by them in regard thereto. It will also be shown by maps and charts how Japan had been gradu- ally encircled economically and territorially by world powers leading up to a critical situation. 17,137 1 2 3 4 5 6 7 8 9 10 | 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 V. Evidence of the Japanese Domestic Con- ditions from Educational, Anti-Communistic and Propaganda Standpoint. Evidence will be introduced to show that the prosecution has exaggerated the importance of military education in the Japanese school system. Military education as practiced in Japan was less objectionable than that of other__prosecuting nations. This evidence will be presented in the form of curricula, statements and testimony. It will be shown that there was no common conspiracy among these accused to prepare the children of Japan for alleged aggressive wars by training, drills, maneuvers or exercises, using the school system as a nefarious vehicle. There were no text- books devised or used for such purposes. Terchers and educators were never indoctrinated with any militarisitic or ultra-nationalistic philosophy or required to teach such ideas in support of any such alleged plan, scheme or common conspiracy. The evidence will further show that military education played only a minor part in the Japanese school system since 1902; that it was never intended to, nor did it dominate school life, or teachings of the children. Furthermore, it will be shown that in 1929 when the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 military budget of Japan was cut, and the size of the Army reduced, an election was offered to the students of military instruction in the schools or limited service in the Army after graduation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j139 It will be shown that even when Japan was engaged in hostilities with China, commencing in 1937, her universities were not turned into military schools as claimed, which has been the practice of other nations auring times of war. There never was any common conspiracy among these accused to regiment the youth ©f Japan through the school system and to inculcate them with a spirit of totalitarianism or aggression. The Peace Preservation Law was enacted and enforced for the purpose of combating the rightists and the menace of Communism. It will be shown that the effect of the three Russian five-year plans, the resolutions of the 7th Conference of the Internationale in 1935, and the activities of the communists in Japan caused real anxiety among the Japanese people and the government. The government was charged with the responsibility of maintaining law and order in Japan, | and subversive activities of the communists warranted the steps taken for their control. It was entirely unrelated to any alleged preparations for aggressive war. These accused are charged with using propa- ganda, censorship, press, radio and moving pictures for the purpose of furthering the alleged plan or conspiracy for aggressive war. It will be shown that no such use was ever made of these means of communieatians 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j140 for such purposes curing peace time and it will be further shown that during times of war the uses made these means of communications were no different than those which could reasonably- be expected to be used and were used by other countries curing war times. This use was totally unrelated to any alleged common conspiracy among these accused. It will be shown by witnesses, publications and official cocuments 'that there was no propaganda as charged by the prosecution to bring about any wars or criminal acts. The evidence will shown that there is no foundation for stamping these various measures taken by Japan and some of these accused in the normal operation of the government with the label of aggressive war. The enactment and execution of laws and measures were not for ulterior purposes as claimed but for sound ana proper reasons and in the promotion of good government, unrelated to the charges in the Indictment. With respect to the evidence to,be present in this division, as has been pointed out in the general opening statement, individual accused may, in the pre- sentation of their defenses, differ wi^h certain items of evidence, the inferences to be drawn therefrom and their involvement therein. Mr. George Yamaoka will now present the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, evidence of basic documents relating to the surrender, the creation of the Tribunal, treaties and the Consti-• * tutional laws and regulations of Japan. 17,142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE PRESIDENT: Mr. Yamaoka. MR. YAMAOKA: Mr. President and Members of the Tribunal: During the early stages of the prose- cution's case certain basic documents relating to the surrender, the creation and jurisdiction cf this Tri- bunal, treaties and agreements, and Japanese laws and ordinances were received in evidence. Many of these documents ?/ere admitted by reference to titles only; as to some others, only excerpts therefrom were read; in certain other instances the entire documents were read by the prosecution into the transcript. It will be recalled that the Tribunal ruled that the defense may read such portions of these ex- hibits not previously read by the prosecution at the proper time as part of the defense case. We now avail ourselves of this opportunity and with the Tribunal's permission we shall now read such portions from certain prosecution exhibits which are applicable to this divi- sion of the defense case. We will now read prosecution Exhibit i; "The Cairo Conference. United States of America: President Roosevelt. China: Generalissimo Chiang Kai-Shek. United Kingdom: Prime Minister Churchill. "Statement Released December 1, 1943. 17,143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 | 21 22 23 24 25 "The several military missions have agreed upon future military operations against Japan. The Three Great Allies expressed their resolve to bring unrelenting pressure against their brutal enemie-s by sea, land, and air. This pressure is already rising. "The Three Great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied s.ace the beginning of the first World War in 1914, and that all the terri- tories Japan has stolen from the Chinese, such as Man- churia, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three gre at powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent. "With these objects in view the three Allies, in harmony with those of the United Nations at war with Japan, will continue to persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 7 j 1 4 4 Next we read prosecution Exhibit 2: "Potsdam Declaration. 26 July 1945. Pro- clamation by Heads of Governments, United States, United Kingdom, and China. "(1) We — the President of the United States, the President of the National Government of the Repub- lic of China, and the Prime Minister of Great Britain, representing the hundreds of millions of our country- men, have conferred and agree that Japan shall be given an opportunity to end this war. "(2) The prodigious lane1, sea and air forces of the United States, the British Empire and of China, many times reinforced by their armies and air fleets from the west, are poised to strike the final blows upon Japan. This military power is sustained and in- spired by the determination of all the Allied Nations to prosecute the war against Japan until she ceases to resist. "(3) The result of the futile and senseless German resistance to the might of the aroused free peoples of the world stands forth in awful clarity as an example to the people of Japan. The might that now converges on Japan is immeasurably greater than that which, when applied to the resisting Nazis, necessarily laid waste to the lands, the industry and the method 1 2 3 4 • 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j145 of life of the whole German people. The full appli- cation of our military power5 backed by our resolve, will mean the inevitable and complete destruction of the Japanese armed forces and just as inevitably the utter devastation of the Japanese homeland. "(4) The time has come for Japan to decide whether she will continue to be controlled by those self-willed militaristic advisers whose unintelligent calculations have brought the Empire of Japan to the threshold of annihilation, or whether she will follow the path of reason. "(5) Following are our terms, We will not deviate from them. There are no a lternatives. We shall brook no delay. "(6) There must be eliminated for all time the authority and influence of those who have deceived â id misled the people of Japan into embarking on world conquest, for we insist that a new order of peace, se- curity and justice will be impossible until irrespon- sible militarism is driven from the world. "(7) Until such a new order is established and until there is convincing proof that Japan's war- making power is destroyed, points in Japanese territory to be designated by the Allies shall be occupied to secure the achievement of the basic objectives we are 1 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j146 here setting forth, "(8) The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be lim- ited to the islands of Honshu, Hokkaido, Kyushu, Shi- koku and such minor islands as we determine. "(9) The Japanese military forces, after being completely disarmed, shall be permitted to re- turn to their homes with the opportunity to lead peace- ful and productive lives. "(10) 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 crim- inals, including those who have visited cruelties upon our prisoners. The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Free- dom of speech, of religion, and of thought, as well as respect for the fundamental human rights, shall be established. "(11) Japan shall be permitted to maintain such industries as will sustain her economy and permit the exaction of just reparations in kind, but not those which would enable her to re-arm for war. To this end, access to, as distinguished from control of, raw mater- ials shall be permitted. Eventual Japanese participation 1 2 3 4 5 6 7 8 9 LO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j147 in world trade relations shall be permitted. "(12) The occupying forces of the Allies shall be withdrawn from Japan as soon as these objec- tives have been accomplished and there has been estab- lished in accordance with the freely expressed will of the Japanese people a peacefully inclined and respon- sible government. "(13) We call upon the government of Japan to proclaim now the unconditional surrender of all Japanese armed forces, ahd to provide proper and ade- quate assurances of their good faith in such action. The alternative for Japan is prompt and utter destruc- tion." THE PRESIDENT: We will recess now for fifteen minutes. (Whereupon, at 1045 a recess wa s taken until 1100, after which the proceedings were resumed as follows:) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j148 MARSHAL OF THE COURT: The International Military Tribunal for the Far East is now resumed. THE PRESIDENT: Mr. Yamaoka. MR. YAMAOKA: Mr. President, Members of the Tribunal. With the Tribunal's leave we will next read prosecution's exhibit 3 "JAPANESE QUALIFIED ACCEPTANCE "Legation de Suisse "Washington, D.C. August 10, 1945 "Sir: \ "I have the honor to inform you that the Japanese Minister to Switzerland, upon instructions received from his Government, has requested the Swiss Political Department to advise the Government of the \ United States of America of the following: "* In obedience to the gracious command of His Majesty the Emperor who, ever anxious to enhance the cause of world peace, desires earnestly to bring about a speedy termination of hostilities with a view to saving mankind from the calamities to be imposed upon them by further continuation of the war, the Japanese Government several weeks ago asked the Soviet Government, with which neutral relations then prevailed, to render good offices in restoring 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j149 peace vis a vis the enemy powers. Unfortunately, these efforts in the interest of peace having '.'ailed, the Japanese Government in conformity with the august wish of His Majesty to restore the general peace and desiring to put an end to the untold sufferings en- tailed by war as quickly as possible, have decided upon the following: "'The Japanese Government are ready to accept the terms enumerated in the joint declaration which was issued at Potsdam on July 26, 1945, by the heads of the Governments of the United States, Great Britain, and China, and later subscribed by the Soviet Government with the understanding that the said dec- laration does not comprise any demand which prejudices v the prerogatives of His Majesty as a Sovereign Ruler. "'The Japanese Government sincerely hope that this understanding is warranted and desire keenly that an explicit'indication to that effect will be speedily forthcoming.' "In transmitting the above message the Japanese Minister added that his Government begs the Governmenc of the United States to forward, its answer through the intermediary or Switzerland. Similar re- quests are being transmitted to the Governments of Great Britain and the Union of Soviet Socialist Republics I 17,150 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through the intermediary of Sweden, as well as to the Government of China through the intermediary of Switzerland. The Chinese Minister at Berne has already been informed of the foregoing through the channel of the Swiss Political Department. "Please be assured that I am at your disposal at any time to accept for and forward to my Government the reply of the Government of the United States. "Accept, Sir, the renewed assurances of my highest consideration." I shall omit the signatures. We will next read prosecution's exhibit 4: "REPLY BY SECRETARY 0? STATE TO JAPANESE QUALIFIED ACCEPTANCE "August 11, 1945 "Sir: "I have the honor to acknowledge receipt of your note of August 10, and in reply to inform you that the President of the United States has directed me to send to you for transmission by your Government to the Japanese Government the following message on behalf of the Governments of the United States, the United: Kingdom, the Union of Soviet Socialist Republics, and China: "'With regard to the Japanese Government's 17,151 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 message accepting the terms of the Potsdam proclama- tion but containing the statement, 'with the under- standing that the said declaration does not comprise any demand which prejudices the prerogatives of His Majesty as a sovereign ruler,' our position is as follows: "'From the moment of surrender the authority of the Emperor and the Japanese Government to rule the state shall be subject to the Supreme Commander of the Allied powers who "'ill take such steps as he deems proper to effectuate the surrender terms. "'The Emperor will be required to authorize and ensure the signature by the Government of Japan and the Japanese Imperial General Headquarters of the surrender terms necessary to carry out the provisions of the Potsdam Declaration, and shall issue bis commands to nil the Japanese military, naval and air authorities and to all the forces under their control wherever located to cease active operations and to surrender their arms, and to issue such other orders as the Supreme Commander may require to give effect to the surrender terms. "'Immediately upon the surrender the Japanese Government shall transport prisoners of war and civilian internees to places of safety, as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 17 j152 directed, where they can quickly be placed aboard Allied transports. '"The ultimate form of government of Japan shall, in accordance with the Potsdam declaration, be established by the freely expressed will of the Japanese people. "'The armed forces of the Allied Powers will remain in Japan until the purposes set forth in the Potsdam Declaration are achieved.' "Accept, Sir, the renewed assurances of my highest consideration." I shall omit the signature. We next read prosecution's exhibit 5°. "FINAL JAPANESE ACCEPTANCE "Legation de Suisse "Washington, D.C. August 14, 1945 "Sir: "I have the honor to refer to your note of August 11, in which you requested me to transmit to my Government the reply of the Governments of the United States, the United Kingdom, the Union of Soviet Socialist Republics and China to the message from the Japanese Government which was communicated in my note of August 10. "At 20.10 today (Swiss Time) the Japanese 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j153 Minister to Switzerland conveyed the following written statement to the Swiss Government for transmission to the four Allied Governments: "'Communication of the Japanese Government of August 14, 1945, addressed to the Governments of the United States, Great Britain, the Soviet Union, and China: "'With reference to the Japanese Government's note of August 10 regarding their acceptance of the provisions of the Potsdam declaration and the reply of the Governments of the United States, Great Britain, the Soviet Union, and China sent by American Secretary of State Byrnes under the date of August 11, the Japanese Government have the honor to communicate to the Governments of the four powers as follows: "'1. His Majesty the Emperor has issued an Imperial rescript regarding Japan's acceptance of the previsions of the Potsdam declaration. "'2. His Majesty the Emperor is prepared to authorize and ensure the signature by his Government and the Imperial General Headquarters of the necessary terms for carrying out the provisions of the Potsdam declaration. His Majesty is also prepared to issue his commands to all the military, naval and air author- ities of Japan and all the forces under their control 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j154 wherever located to cease active operations, to surrender arms and to issue such other orders as may be required by the Supreme Commander of the Allied Forces for the execution of the above-mentioned term.' "Accept, Sir, the renewed assurances of my highest consideration." I shall omit the signatures. We will next read prosecution's exhibit 6, including the proclamation by the Emperor of Japan: "INSTRUMENT 0? SURRENDER "We, acting by command of and in behalf of the Emperor of Japan, the Japanese Government and the Japanese Imperial General Headquarters, hereby accept the provisions set forth in the declaration issued by the heads of the Governments of the United States, China and Great Britain on 26 July 1945 at Potsdam, and subsequently adhered to by the Union of Soviet Socialist Republics, which four powers are hereafter referred to as the Allied Powers. "We hereby proclaim the unconditional sur- render to the Allied Powers of the Japanese Imperial General Headquarters and of all Japanese armed forces and all armed forces under Japanese control wherever situated. 17,155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "We hereby command all Japanese forces wherever situated and the Japanese people to cease hostilities forthwith, to preserve and save from damage all ships, aircraft, and military and civil property and to comply with all requirements which mas'- be imnosed by the Supreme Commander for the Allied Powers or by agencies of the Japanese Govern- ment at his direction. "We hereby command the Japanese Imperial General Headquarters to issue at once orders to the Commanders of all Japanese forces and all forces under Japanese control wherever situated to surrender unconditionally themselves and all forces under their control. "We hereby command all civil, military and naval officials to obey and enforce all proclamations, orders and directives deemed by the Supreme Commander for the Allied Powers to be proper to effectuate this surrender and issued by him or under his authority and we direct all such officials to remain at their posts and to continue to perform their non-combatant duties unless specifically relieved by him or under his authority. "We hereby undertake ?or the Emperor, the Japanese Government and their successors to carry out 17,156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the provisions of the Potsdam Declaration in good faith, and to issue whatever orders and take whatever action may be required by the Supreme Commander for the Allied Powers or by any other designated repre- sentative oT the Allied Powers for the purpose of giv- ing effect to that Declaration. "We hereby command the Japanese Imperial Government and. the Japanese Imperial General Head- quarters at once to liberate all allied prisoners of war and. civilian internees now under Japanese control and to provide for their protection, care, mainten- ance and immediate transportation to places as directed. "The authority of the Emperor and the Japanese Government to rule the state shall be sub- ject to the Supreme Commander for the Allied Powers who will take such steps as he deems proper to effectuate these terms of surrender. "Signed at Tokyo Bay, Japan, at 0904 on the Second day of September, 1945". "Mamoru SHIGEHITSU "By Command and. in behalf of the Emperor of Japan and the Japanese Government "Yoshi.jiro UMEZO ' "By Command and in behalf of the Japanese Imperial General Headquarters. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, "Accepted at Tokyo Bay, Japan at 0908 on the Second day of September, 194-5 for the United States, Republic of China, United Kingdom and the Union of Soviet Socialist Republics, and in the interests of the other United nations at war with Japan. "Douglas MacArthur "Supreme Commander fcr the Allied Powers." I shall omit the rest of the signatures. "PROCLAMATION BY THE EMPEROR OF JAPAN "Accepting the terms set forth in the Declar- ation issued by the heads of the Governments of the United States, Great Britain and China on July 26, 194-5 at Potsdam and subsequently adhered to by the Union of Soviet Socialist Republics, I have commanded the Japanese Imperial Government and the Japanese Imperial General Headquarters to sign on my behalf the instrument of surrender presented by the Supreme Commander for the Allied Powers and to issue General Orders to the Military and Naval forces in accordance with the direction of the- Supreme Commander for the Allied Powers. I command all my people forthwith to cease hostilities, to lay down their arms and faith- fully to carry out all the provisions of the Instrument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 \ of surrender and the General Orders issued by the Japanese Imperial General Headquarters thereunder." We now read excerpts from prosecution's exhibit 7, starting with page 3: 17,159 1 2 3 4 5 6 7 I 8 | 9i 10 11 J 12 ! 13 14 15 16 17 i 18 I 19 ! 20 21 22 23 24 25 In the clear, from Washington M WCI 32355 DTD 28 December 45 continued. THE PRESIDENT: Omit reading those things, Mr. Yamaoka. T!,Te do not have time to listen to all tha 'i. MR. YAMAOKA: I shall then continue reading from page 3: "A Far Eastern Commission agreement was reached with the concurrence of China for the estab- lishment of a Far Eastern Commission to take the place of the Far Eastern Advisory Commission. The terms of reference for the Far Eastern Commission are as follows: "I. Establishment of the Commission: "Far Eastern Commission is hereby estab- lished composed of the representatives of the Union of Soviet Socialist Republics, United Kingdon, United States," China, France, The Netherlands, Canada, Aus- tralia, New Zealand, India and the Philippine Common- wealth. "II. Functions: "A. The functions of the Far Eastern Com- mission shall bes "(1) To formulate the policies, principles and standards in conformity with which the fulfillment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j160 by Japan of its obligations under the Terns of Sur- render may be accomplished. (2) To review on the request of any member any directive issued to the Supreme Commander for the Allied Powers or any ac- tion taken by the Supreme Commander involving policy decisions within the jurisdiction of the Commission. (3) To consider such other matters as may be as- signed to it by agreement among the participating governments reached in accordance with the voting procedure provided for in Article V-2 hereunder. "B. The Commission shall not make recom- mendations with regard to conduct of military opera- tions nor with regard to territorial adjustments. The Commission in its activities will proceed from the fact that there has been formed an Allied Council for Japan and will respect existing control machinery in Japan including the chain of Command from the United States Government to the Supreme Commander and the Supreme Commander's Command of Occupation Forces,. "III. Functions of the United States Govern- ment : "1,. The United States Government shall pre- pare directives in accordance with policy decisions of the Conmission and shall transmit them to the Supreme Commander through the appropriate United 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j161 States Government Agency. The Supreme Commander shall be charged with the implementation of the directives which express the policy decisions of the Commission. "2. If the Commission decides that any directive or action reviewed in accordance with Article II-A-2 should be modified its decision shall be regarded as a policy decision. "3• The United States Government may issue interim directives to the Supreme Commander pending action by the Commission whenever urgent matters arise not covered by policies already formulated by the Commission, provided that any directive dealing with fundamental changes in the Japanese Constitutional structure or in the regime of control or dealing with a change in the Japanese Government as a whole will be issued only following consultation and following the attainment of agreement in the Far Eastern Com- mission. "4. All directives issued shall be filed with the Commission." I shall now omit through to page 6, paragraph 5s "5. The Supreme Commander shall issue all orders for the implementation of the Terms of Surr/nder, 17,162 i l 2 £ 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Occupation and control of Japan and directives supplementary thereto. In all cases action will be carried out under and through the Supreme Commander who is the sole Executive Authority for the Allied Powers in Japan. He will consult and advise with the Council in advance of the issuance of orders on matters of substance, the exigencies of the situation permitting his decisions upon these matters shall be controlling." I shall then omit to paragraph IV on page 7° "IV. China. "The 3 Foreign Secretaries exchanged views with regard to the situation in China. They were in agreement as to the need for a unified and demo- cratic China under the National Government, for broad participation by democratic elements in all branches of the National Government and for a cessa- t tion of civil strife. They reaffirmed their adherence to the policy of non-interference in the internal i affairs of China. Mr. Molotov and Mr. Byrnes had several conversations concerning Soviet and American Armed Forces in China. Mr. Molotov stated that the Soviet Forces had disarmed and deported Japanese Troops in Manchuria, but that withdrawal of Soviet Forces had been postponed until February 1st at the 17,163 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 request of the Chinese Government. Mr. Byrnes pointed out that American Forces were in North China at the request of the Chinese Government and referred also to the primary responsibility of the United States in the implementation of the Terms of Surrender with respect to the disarming and deportation of Japanese Troops. Ke stated that American Forces would be withdrawn just aj soon as this responsibility was discharged or the Chinese Government was in a position to discharge the responsibility without the assistance of American Forces. The 2 Foreign Secretaries were in complete accord as to the desirability of withdrawal of Soviet and American Forces from China at the earliest practicable moment consistent with the dis- charge of their obligations and responsibility." We next read prosecution exhibit 8°. "SPECIAL PROCLAMATION "ESTABLISHMENT OF AN INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST "WHEREAS, the United States and the Nations allied therewith in opposing the illegal wars of aggression of the Axis Nations, have from time to time made declarations of their intentions that war crimi- nals should be brought to justice 5 "WHEREAS, the Governments of the Allied 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j164 Powers at war with Japan on the 26th July 1945 at Potsdam, declared as one of the terms of surrender that stern justice shall be meted out to all war criminals including those who have visited cruelties upon our prisoners; "WHEREAS, by the Instrument of Surrender of Japan executed at Tokyo Bay, Japan, on the 2nd September 1945, the signatories for Japan, by command of and in behalf of the Emperor and the Japanese Govern- ment accepted the terms set forth in such Declaration at Potsdam; "WHEREAS, by such Instrument of Surrender, the authority of the Emperor and the Japanese Govern- ment to rule the state of Japan is made subject to the Supreme Commander for the Allied Powers, who is authorized to take such steps as he deems proper to effectuate the terms cl surrender; "WHEREAS, the undersigned has been desig- nated by the Allied Powers as Supreme Commander for the Allied Powers to carry into effect the general surrender of the Japanese armed forces; "WHEREAS, the Governments of the United States, Great Britain and Russia at the Moscow Con- ference, 26th December 1945, having considered the effectuation by Japan of the Terms of Surrender, with 17,165 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the concurrence of China have agreed that the Supreme Commander shall issue all orders for the implementa- tion of the Terms of Surrender. "NOW, THEREFORE, I, Douglas MacArthur, as Supreme Commander for the Allied Powers, by virtue of the authority so conferred upon me, in order to im- plement the Term of Surrender which requires the meting out of stern justice to war criminals, do order and provide as follows: "ARTICLE 1. There shall be established an International Military Tribunal for the Far East for the trial of those persons charged individually, or as members of organizations, or in both capacities, with offenses which include crimes against peace. "ARTICLE 2. The Constitution, jurisdiction and functions of this Tribunal are those set forth in the Charter of the International Military Tribunal for the Far East, approved by me this day. "ARTICLE 3. Nothing in this order shall i prejudice the jurisdiction of any other international, national or occupation court, commission or other tribunal established or to be established in Japan or in any territory of a United Nation with which Japan has been at war, for the trial of war criminals. "Given under my hand at Tokyo, this 19th day 1 2 3 4, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j166 of January, 194-6. "DOUGLAS MacARTHUR, General of the Army, United States Army, Supreme Commander for the Allied \ Powers." 17,167 1 2 3 4 5 6 7 8 9 [ 10 j 11 I I 12 13 14 15 j 16 ; 1 7 i 18 j 19 | 20 21 22 23 24 25 We now read from prosecution's exhibit 12: "Convention between the United States and Certain Powers for the Pacific Settlement of Inter- national Disputes. "Signed at The Hague July 29, 1899. "Ratification advised by the Senate February 5, 1900. "Ratified by the President of the United States April 7, 1900. "Ratification deposited with the Netherlands Government September 4, 1900. "Proclaimed November 1, 1901." THE PRESIDENT: Why read all that, Mr. Yamaoka? You do not question its due application? MR. YAMAOKA: No, we do not, your Honor. I shall omit reading it hereafter. I shall commence reading from the bottom of page 2: "Animated" — THE PRESIDENT: I would like to know why it is necessary for you to read this. I do not think it is foing to be any more convenient for us to have it in the transcript. You see, you are not reading parts omitted by the prosecution; you are reading the lot. In effect, you are giving us another copy of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j168 the exhibit and in no very convenient way. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j169 MR. YAMAOKA: If year Honor please, the Tribunal will recall that during the early stages of the prosecution's case this exhibit, as well as the exhibits to follow, to which we desire to call the attention cf the Tribunal, were introduced by reference to titles only; and that was primarily because, as I understand it, nc definite procedure fcr the introduction of t' ese early documents had been determined. THE PRESIDENT: But all these documents are in evidence even if they have not been judicially noticed. I think we all agree they should be. I am reminded that there was an order covering these in relation to judicial notice. Just tell us the documents upon which ycu propose to rely and in special cases the particular parts. That will do, Mr. Yamaoka. MR. YAMAOKA: Your Honor will recall that on several occas ions the privilege was giver to the defense, at the proper time, to read such excerpts or such parts of the prosecution's exhibits as the defense desired to call to the attention of the Tribunal; and we propose to read only the pertinent portions cf these documents to which we beg to invite the Court's attention at later stages of the case. 17 j170 THE PRESIDENT: Yes. MRo YAMAOKA: In conformity with the Tribunal's desire, I shall omit the prefatory remarks of these instruments and read pertinent Articles of the Conventions. With the Tribunal's permission I should like to read from page 9, Title I on for several Articles. May I proceed, your Honor? THE PRESIDENT: Proceed, Mr. Yamaoka. MR. YAMAOKA: Article I on page 9: (Reading) "With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences." THE PRESIDENT: How do you propose to make that the subject of evidence? You see, you are supposed to be making an opening statement of your evidence. This is pure law. Your attitude is just as objectionable as that of the Japanese counsel who was net allowed to proceed. MR. YAMAOKA: Well, if the Tribunal please, this has been offered by the prosecution as an exhibit in the case. THE PRESIDENT: They asked us to take judicial 17,171 1 2 3 4 5 6 7 # 9 10 n 12 13 14 15 16 # 17 18 19 20 21 22 23 24 25 notice of these documents. We did, and they gave us copies. They were marked as exhibits for convenience sake. They are still statements of law, Mr. Yamaoka. MR. YAMAOKA: With great respect, your Honor, this Treaty, the Hague Convention III, is one of those basic treaties which the accused are charged with having violated. THE PRESIDENT: It is all unnecessary. That is what I am trying to indicate to you, Mr. Yamaoka. All these things are before us. MR. YAMAOKA: I am not endeavouring to argue with the Tribunal, Mr. President, but we, the defense, thought that we had the privilege of pro- ceeding to read certain pertinent parts of these prosecution exhibits. I believe your Honor has ruled several times on that during the course of the trial. THE PRESIDENT: You are here to tell us now what facts you are going to prove, and these are things that are already proved and in evidence. They are proved actually. They are judicially noticed. They are not merely in evidence. They are established facts, and there is no need for you to repeat them. Just tell us what new facts you -propose to introduce, Mr. Yamaoka. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j172 MR. YAMAOKA: Well, if your Honor pleases, this is in the phase of the defense case where we are inviting the attention of the Tribunal to certain evidence in the case. We are not in the phase of the opening statement at all. It is part of the defense case, and at the time these documents were introduced the defense sought to read certain excerpts which they deemed pertinent to their case; but the request was, I believe, denied, and the right reserved to the defense to read such portions therefrom as deemed necessary by them at the proper time when the defense case came on. THE PRESIDENT: I can only repeat: You are opening, or should be opening, evidence you propose to adduce. You are referring to facts already established about which there is no question. MR. YAIvACKA: Well, will the Tribunal permit a reference to certain Articles, not the reading? THE PRESIDENT: Well, I cannot see how it is necessary to do even that, Mr. Yamaoka, in order for you to make a statement of the evidence you intend to adduce. 17,173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. YAMAOKA: Mr. President, may I endeavor to clarify further briefly just what our position is? We are in that portion of the defense case where we intend to introduce evidence or call attention tc certain parts of evidence. THE PRESIDENT: Well, we are a bit apprehen- sive. \ have seen a list of eighty odd prosecution documents that you propose to read. MR. YAMAOKA. Yes, your Honor. THE PRESIDENT: They are without advantage to anybody, either to the bench or to yourself. If you say, "In the course of giving evidence we shall have occasion to refer to certain documents," stating the exhibit number and the part, that will be sufficient for our purposes. MR. YAMAOKA: Mr. President, that is what we propose to do. In the interest of orderly proced- ure we thought it best to refer to these documents at the very beginning and to get them out of the way. THE PRESIDENT: Well, put it this way: Hague Convention of 1899, exhibit number, whatever it is — 8 — page, and paragraph. MR. YAMAOKA: We had only intended to call 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, the Tribunal's attention t© seven of t.-ie articles here. That was all. THE PRESIDENTi Proceed. MR. YAMAOKA: Then, may I invite the Iribun al's attention to Title II, Article 2, Article 3, Article 4, Article 5, Article 6, and Article 7? -THE PRESIDENT'S Yes, MR. YAMAOKA: And also to the reservations and the signatures of the contracting powers., there- under, on pages 29 through to 32. MR, BROOKS; Mr. President, I would like as a point of information to inquire: In the join- ing with the general phase I understood that the twenty-six and some odd defendants -- having these statements read would do away with our having to read them In our individual cares, and that we would refer to a certain page on them. If the prosecution had not placed these documents tefore this court as exhibits, the ones that counsel in behalf of all of us is putting forward, J;hey would not be tendered as exhibits at this timti, the relevant portions we are going to rely on laner on in individual cases and any argument we wer>5 going to put forth. But if 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j175 we are to be foreclosed on that point it means that certain of us will have to go back twenty-six times possibly on some of these points and refer to them. I thought, being «n the Documents Committee, that this has been of great assistance to us. We have enjoyed this measure of saving time, and I thought that if I would bring that point to the Court's attention -- that otherwise if we cannot put this material in at this time and refer to it later on, it is geing to cause undue repetition end it is geing to mean that additional matter will have to be pulled from these extracts for several days to put in their phase. THE PRESIDENT: If it is convenient for us to use this document instead of handling a transcript every time, it must be so for you. You have these documents as we have them. MR. BROOKS: Yes. We have felt that a ex- tract from a large number of documents here -- ex- tracting the proportionate part and laying it out with the other parts in brief form would be of great bene- fit in presenting our case. THE PRESIDENT: tee have gone as far as we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17,17* intend to go in this matter. Captain Brooks. Proceed. MR. YAMAOKA: With the Tribunal's permission, then, may I refer to prosecution exhibit 13, which is the Hague Convention for the Pacific Settlement of International Disputes of October 18, 1907? THE PRESIDENT: The Hague Convention of 1906, MR. YAMAOKA: 1907, your Honor; Articles 1, 2, 3, 4, 5, 6, 7, 8, and 9 inclusive. Also may I invite the [tribunal's attention -to Part 4, on page 11, Articles 37 to 40 inclusive. That will be all for that exhibit. 'we next invite the attention of the Tribunal to Prosecution Exhibit 14. It will be noted that this exhibit offered by the prosecution omits Article 1. Prosecution exhibit 15, at pages 3 to 7? however, contains prosecution exhibit 14 in full. I there- fore beg to invite the Tribunal's attention to the entire treaty, as shown in exhibit 15, and particular- ly to Article 1, which was omitted from exhibit 14. With the Tribunal's permission I should desire to obtain permission for Mr. Howard, my asso- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, ciate, to continue on behalf of the d^f en.se. THE PRESIDENT: We will hear Mr. Howard after lunch. We will adjourn now until half past one. (Whereupon, at 1200,a recess was taken.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j178 AFTERNOON SESSION The Tribunal met, pursuant to recess, at 1330. MARSHAL OF THE COURT: The International Military Tribunal for the Far East is now resumed. THE PRESIDENT: Mr. Yamaoka. MR. YAMAOKA: If the Tribunal please, just before the noon recess your Honor will recall that it ruled that the Hague Convention III, for instance, was a matter of judicial notice and while I did recall at the time that such an order, and order on judicial notice, had been entered I wasn't quite familiar with the full terms thereof and during the noon recess I took the liberty of checking back the record and I should desire, with the Tribunal's permission, to point out certain parts of the record dealing with this subject in the hope that it will be of assistance to the Tribunal. This subject first came up on the 23rd of May 1946 upon the motion of the prosecution bearing Paper No. 76, I believe. Paragraph 4 of this motion reads as follows: "•(4) FOR AN ORDER that the Court take judicial; notice of each of the documents set out in Schedule B 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j179 hereto as basic documents, without further authentication or proof of the same." Schedule B contains a list of 95 basic docu- ments with which we are here concerned at the moment. This matter came up before the Tribunal on the 3rd of June 1^46 and I beg to refer to pages 357 et sequitur of the record. Mr. Justice Mansfield on behalf of the prosecution in presenting the matter stated as follows: "With respect to number four for an order that the Court take judicial notice of each of the documents set out in Schedule B hereto as basic documents with- out further proof or authentication or proof of the same - that motion also may be inartistically worded and what is really the basis of the application is that the prosecution be allowed to introduce in evidence the documents set out in the Schedule without any formal proof of their authenticity and without prejudice to the right of the defense to object to any of them, when they are referred to in evidence, on the grounds of immateriality or irrelevance, or on any other substantial ground." On page 359 of the record, Mr. Justice Mansfield continued: "Therefore, instead of the motion as it appears in the paper, I ask .for an order that the documents in 1 2 3 4 5 6 7 8 9 LO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j180 Schedule B' — at least that the prosecution he at liberty to produce the documents listed in Schedule B without formal proof thereof." On' page 360 of the record, the President stated: "It is suggested then that your motion should read: 'The Court shall not require proof of the authenticity of documents set out in Schedule B hereto and shall receive them in evidence,'" There is further discussion of this subject which I shall not read on page 368 of the record and also on page 380. As a result on the 4th of June 1946, an order was entered by the Tribunal which — a part of which reads as follows: "ORDERED: Granted, as to the 4th paragraph of said motion, In that the Tribunal gives liberty to the Prosecution to produce the documents listed in Schedule B of the motion without formal proof thereof, but subject to all just exceptions involving the accuracy, relevancy and materiality of the documents. Subject to such exceptions at the trial, the Tribunal will not require proof of the authenticity of the documents and shall receive them in evidence," In the light of this record, the defense would desire to know whether many of these basic documents, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j181 in respect of which the Tribunal has ruled this morn- ing, can not be further considered for the purpose of reading into the record. THE PRESIDENT: What you have read makes no change, Mr. Yamaoka. The position is still the same. All these things are in evidence. Why read them into the transcript? It does not make for convenience. We can refer to them in the pamphlets. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j182 MR. YAMAOKA: Well, we will naturally comply with the Tribunal's ruling, but I desire to point out that the Tribunal has repeatedly said that it will not undertake to read documents which counsel do not see fit to read into the transcript, and that counsel must read the parts which they consider to be sig- nificant into the record. It is in conformity with that rule that we have been proceeding. THE PRESIDENT: Yes, but why at this stage? That is the point. Why read them at this stage? You can read, them when you are giving evidence which bears on them. Or you can read them in the course of your summation, but why now? ^ MR. YAMAOKA: '*Tell, if your Honor pleases, this is the general phase of the defense case and we are now .in the stage where we desire to offer evidence on behalf of the defense. - THE PRESIDENT: These matters are already in evidence. All you have to do is to refer to them. Don't read them again. We will be here for weeks listening to you reading. Read them as the occasion arises, not now. It will not help us to read all these things now. .MR. YAMAOKA: With great respect may I call to the Tribunal's attention that these documents 17,183 1 2 3 4 5 6 7 8 9 have never been read into the transcript before. THE PRESIDENT: We undertake to refer to every passage in any of these documents that you desire us to refer to and to read. You see, you are in an opening statement; you keep forgetting that. And an opening statement is a statement of evidence. I can't call this Hague Convention of 189? evidence because it is already in evidence. It is not fresn evidence. It is already in evidence. 10 You are reading evidence already given. n MR. YAMAOKA: Well, if the Tribunal please, 12 we are not in the phase of — we are not continuing 13 the defense opening statement at the present time. t ^e are now at the point of referring to prosecution's exhibits and reading excerpts therefrom, in accord- ance with the Tribunal's previous rulings, and laying the basis for further evidence to follow in the defense case. THE PRESIDENT: Well, you are giving evidence by giving evidence already given. MR. YAMAOKA: I hope that I made myself clear, your Honor, that these documents to which we wish to allude at the moment have never been read into the transcript. THE PRESIDENT: Well, you will not take 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j184 our word for it that we will read everything to which you refer. Apparently you are not satisfied with that, but I think we ought to insist on that. MR. YAMAOKA: Well then, Mr. Collins Howard will continue for the defense. / MR. HOWARD: Mr. President. THE PRESIDENT: Mr. Howard. MR. HOWARD: And Members of the Tribunal: I was to have read from exhibit 15, prose- ' cution exhibit, chapter 2, Laws and Customs of War on Land. That is on page This is the laws and customs that these accused, or a large number of them, are charged with having violated. In view of the Court's statement, however, I will not read these unless the Court expresses a desire to hear them at this time. THE PRESIDENT: TPe do not desire you to read those things, Mr. Howard. You may read parts of that Convention which sbo7/ how the articles are brought into force. That is important. I do not know t!~at that has been read, yet it may have been. MR. HOWARD: This is the Hague Convention No. IV of 18 October 1907. Convention respecting the laws and customs of war on land. And then follows a t 1 2 3 4 5 6 7 8 9 LO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, list of sovereigns and heads of the states who sent plenipotentiaries to the conference. (Reading) "Seeing that, while seeking means to preserve- peace and prevent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert; "Animated by tYe desire to serve, even in this extreme case, the interests of humanity.and the ever propressive needs of civilization; "Thinking it important, with this object, to revise the general laws and customs of war, either with a view to defining them with greater pre- cision or to confining them within such limits as would mitigate their severity as far as possible; "Pave deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and. generous forethought, adopted provisions intended to define and govern the usages of war on land. "According to the views of the High Contract- ing Parties, t^ese provisions, the wording of which J 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 has'been — " THE MONITOR: Mr. Howard. Mr. Howard. In view of the President's ruling this morning I bad not prepared to read, this on the IBM system at the same time. In view of that I will have to do this in the relay system, so that when you get to the end of that paragraph will you please stop, then we will read it over number one in the relay system. Thank you. THE PRESIDENT: I did not intend that you should read what you are reading now, but there is somewhere in those Conventions some directions as to how they are to come into operation. However, you are not prepared to deal with that at present. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j187 MR. HOWARD: "Article 1. "The Contracting Powers shall issue in- structions to their armed land forces which shall he in conformity with the Regulations respecting the Laws and Customs of War on Land, annexed to the present Convention. "Article 2. "The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention. "Article 3. "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by per- sons forming part of its armed forces. "Article 4. "The present Convention, duly ratified, shall as between the Contracting Powers, be substi- tuted for the Convention of the 29th July, 1899, re- specting the Laws and Customs of War on Land. "The Convention of 1899 remains in force as between the Powers which signed it, and which do not 17 j188 also ratify the present Convention." "ANNEX TO THE CONVENTION. "REGULATIONS RESPECTING THE LAWS AND CUS- TOMS OF WAR ON LAND. "Section 1. - On Belligerents." I am reading from page 15 now. "Chapter 1. - The Qualifications of Belligerents. "Article 1. "Tho laws, -"ights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: "1. To be commanded by a person responsible for his subordinates 5 "2. To have a fixed distinctive emblem, rec- ognizable at a distance; "3. To carry arms openly; and "4. To conduct their operations in accord- ance with the laws and customs of war. "In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army;.' "Article 2. "The inhabitants of a territory which has not been occupied, who, on the approach of the enemy^ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j189 spontaneously take up arms to resist the invading troops without having had time to organize themselves accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war. "Article 3. "The armed, forces of the belligerent parties may consist cf combatants ard noncombatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war." I believe that covers the part that you — THE PRESIDENT: Well, of course, I assume that the defense are going to rely on those provi- sions in view of the cross-examination even though they apply only in certain circumstances. MR. HOWARD: I am not in a position to state at this time what they will rely on. THE PRESIDENT: If you do not know what f they are going to rely on, you do not know what to read to us. I was suggesting to you what you might be relying on, judging from your cross-examination, and I do not want you to read any more than that on which you are going to rely. But you do not know on what you are going to rely; just set out to read the whole of these documents without giving us any 17,190 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 assistance. MR. HOWARD: Your Honor, I think the prose- cution is relying on this, and we are contesting what they are relying on; we are taking the oth'r side. Now, I had planned to read the Geneva Prisoner of War Convention, on page 27 — page 65 I should have said; exhibit 15. I do not want to read this if the Court does not want to hear it, naturally; but I am here with it before me and pre- pared to read it, and the defense have asked me to read it. But, of course, I am always subject to the wishes of the Court. THE PRESIDENT: We are inviting you to read what you are relying on, but you said you did not know. MR. HOWARD: Your Honor, there will be parts of this that I will rely on; there will be other parts that some of the other attorneys will rely on. Just which parts they will rely on, I do not know. If the Court would rather hear each indi- vidual accused read in the part that he wants, well, of course, that is what the Court will get. THE PRESIDENT: Read what you intended to read. We will tell you when to stop. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HOWARD: "Geneva (Prisoners of War) Convention of 27 July, 1929. "CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR. "Article 1. "The present Convention shall apply, without prejudice to the stipulations of Title VII." "Article 2. ''Prisoners of war are In the power of the hostile Power, but not of the individuals or corps who have captured them. "They must at all times be humanely treated and protected, particularly against acts of violence, insults and public curiosity. "Measures of reprisal against them are prohibited. "Article 3> "Prisoners of war have the right to have their person and their honor respected. Women shall be created with all the regard due to their sex. / "Prisoners retain their full civil status. "Article 4„ "The Power detaining prisoners of war is bound to provide for their maintenance, -"Difference in treatment among—prisone rs 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j192 is lawful only when it is based on the military rank, state of physical or mental health, professional qualifications or sex of those who profit thereby. "TITLE II. CAPTURE. "Article 5. "Every prisoner of war is bound to give, if he is questioned on the subject, his true name and rank, or else his regimental number. "If he infringes this rule, he is liable to have the advantages given to prisoners of his class curtailed. "No coercion may be used on prisoners to secure information relative to the condition of their army or country. Prisoners who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind, whatever. "If, because of his physical or mental con- dition, a prisoner is unable to identify himself, he shall be turned over to the medical corps." THE PRESIDENT: Apparently, you propose to read the whole of the Convention. That is unreason- able, and we refuse to allow it. MR. HCWARD: I then will ask if Mr. Lazarus will be allowed to proceed. THE PRESIDENT: Captain Lazarus. 17,19.3 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LAZARUSs Mr. President, gentlemen of the Tribunal; I am chairman of the third phase of the defense or the China phase, and every excerpt that I have marked from the documents that are in my hands at the moment I assure the Tribunal I personally will use or will rely u^on in my conduct of the defense of the Chin, phase or in my conduct of the defense individually of my client, Field Marshal Shunroku HAT k. THE' PRESIDENT: We appreciate that attitude, Captain Lazarus, and invite you to proceed as you intend. i MR. LAZARUS: Thank you, sir. May I further state, sir, that I am on the committee for several of the other defense phases and I again assure the Tribunal that everything we read we will rely u^on in one of those phases or on an individual case. The first document, if the Tribunal please, I vfer to is exhibit 17 which is a Convention and Final Protocol on the Suppression of the Abuse of Opium and other Drugs. I will read a few, only, of the articles contained therein. Articles 1, 2, and 3 on page 2: f "The Contracting Powers shall enact efficacious 17,194 1 2 3 4 5 6 7 8 9 10 n 12 13 14 15 16 17 18 19 20 21 22 23 24 25 laws or regulations for the control of the production and distribution of raw opium, unless existing laws or regulations have already regulated the matter. "Article 2. The Contracting Powers, taking into account the differences in their trade conditions, shall limit the number of towns, norts or other places through which the importation or exportation of raw opium shall be permitted. "Article 3- The Contracting Powers shall takes measures: "a. to prevent the exportation of raw opium to countries which shell have prohibited the entry thereof, end "b. to control the exportation of raw opium to countries which shall have limited the importation thereof. "Unless existing measures have already regulated the matter." Article 5, top-- of page 3: "The Contracting Powers shall not permit the importation and exportation of raw opium except through duly authorized persons." Under Chapter II, only Article 6 on page 3: " The Contracting Powers shall take measures for the gradual and efficacious suppression of the 17,1-95 ! manufacture, the internal traffic in and the use of 2 prepared opium in so far as the different conditions 3 peculiar to each nation shall allow of this, unless 4 existing measures have already regulated the matter." 5 Page 4, Article 9: 6 "The Contracting Powers shall enact pharmacy 7 laws and regulations in such a way as to limit the manufacture, the sale and the use of morphine, cocaine 9 and their respective salts to medical and legitimate 10 use s only, unless existing laws or regulations have 11 already regulated the matter. They shall cooperate 12 amongst themselves in order to prevent the use of 13 these drugs for any other purpose." Page 5, the 11th Articlc: 15 "The Contracting Powers shall take measures to prohibit in their internal commerce all transfer of morphine, cocaine and their respective salts to all nonauthorized persons, unless existing measures have already regulated the matter." Article 13, the first paragraph only: "The Contracting Powers shall use their best efforts to adopt, or cause to be adopted, measures to the end that the exportation of morphine, cocaine end their respective salts from their countries, possessions, colonies and leased territories to the 16 17 18 19 20 21 22 23 24 25 17 j196 countries, possessions, colonics end leased territories of the other contracting ôvrers shall not take place except in case the persons for whom the drugs are intended shall have received authorizations or permits granted in conformity with "-he laws or regulations of the imnorting country." Page 6, Chapter IV, Article 15: "The Contracting Powers having treaties with China (Treaty Powers) shall take, on concert with the Chinese Government, the measures necessary for the prevention of the smuggling, as well with respect to Chinese territory as with respect to their colonies in the Far Fast and the leased territories which they occupy in China, of raw and prepared opium, morphine, cocaine and their respective salts, as well as of the substances indicated in article 14 of the present Convention. On its side the Chinese Government shall take analogous measures for the suppression of the smuggling of opium and the other substances herein- before indicated, from China to foreign colonies and leased territories." "Article 17: The Contracting Powers having treaties with China shall undertake to adopt the measures nccessary for the restraint and control of the opium-smoking habit in their leased territories, 17 j197 'settlements' end concessions in -liinc, for the suppression of prri passu with the Chinese Government of the opium divans or similar establishments which may still exist there, and for the prohibition of the use of opium in houses of amusement and of prostitution." The last article, Article 18: "The Contracting Powers having treaties with China shall take effective measures for the gradual j reduction, pari nassu with the effective measures whichj the Chinese Government shall take to the same end, of the number of shops, intended for the sale of raw and prepared opium, which may still exist in their leased territories, settlements and concessions in China. They shall adopt efficacious measures for the restraint' and control of the. retail trade in onium in the leased territories, settlements and concessions, unless ex- isting measures have already regulated the matter." Exhibit 18, League of Nations Second Opium Conference, 192?. I resncctfully point out to the Tribunal that China is not among the nations signing this convention. Page 3, the second and third articles only: "The Contracting Parties undertake to enact laws and regulations to ensure the effective control of the production, distribution and export of raw 17,198 1 2 3| I 4 5 6 7 8 9 10 11 12 13 14 15 | 16 | 1 7 | 18 j 19 i ! 2 0 j 21 22 ' 23 24 25 opium, unless lews end regulations on the subject ere already In existence; they also undertake to review periodically, and to strengthen as required, the laws and regulations on the subject which they have enacted in virtue of Article 1 of the Hague Convention of 1912 of the present Convention. "Article 13. Due regard being had to the differences in their commercial conditions, the Con- tracting Parties shall limit the number of towns, Ports or other localities through which the export or import of raw opium or coca leaves shall be permitted." Prge 5, Article 7: "The Contracting Prrties shall take measures to prohibit, as regrrds their internal trade, the delivery to or possession by any unauthorised persons of the substances to which this Chapter applies." Skip to page 14, General Provisions, Article 28: "Each of the Contracting Parties agrees that breaches of its laws or regulations by which the pro- visions of the present Convention are enforced shall be punishable by adequate penalties, including in appropriate cases the confiscation of the substances concerned." If the Tribunal please, exhibit 19, the third 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, and last in a series of narcotic drugs. May I point out at this time to the Tribunal that China did not sign this convention and protocol. Page 19, Article 26; "Any High Contracting Party may, at the time of signature, ratification, or accession, declare, that, in accenting the present Convention, he docs not assume any obligation in respect of all or any of his colonies, protectorates and overseas territories or territories under suzerainty or mandate, and the present Convention shall not apply to any territories named in such declaration." Top of page 20 — no, I will skip that. I • will go to page 23, if the Tribunal please. It is Protocol of Signature, the very last P'ge, No. II. I will make a short statement on it of one sentence. It is merely a reservation by the Japanese Government that they wish excluded from this agreement stocks in Formosa already held at the time. 17,200 1 2 3 4 5 6 7 8 I 9 10 11 12 13 14 15 16 17 18 19 ! I 20 j 2 1 | I 22 23 24 25 If the Tribunal please, exhibit 21. This is the Treaty of Portsmouth between Japan and Russia, 5 September 1905. I had intended to read all of it, beginning with Article I, the middle of page 1, if your Honor please, but as I go along I will try to delete articles which I con't deem absolutely essential to the presen- tation of our case. (Reading) "Article II - The Imperial Russian Government, acknowledging that Janan possesses in Korea paramount political, military and economical interests, engage neither to obstruct nor interfere with the measures of guidance, protection and control which the Imperial Government of Japan may find it necessary to take in Korea." Skipping one paragraph: "It is also agreed that, in order to avoid all cause of misunderstanding, the two High Contracting Parties will abstain, on the Russo-Korean frontier, from taking any military measure which may menace "bhe security of Russian or Korean territory." Article III, top of page 2: "Japan and Russia mutually-engage: "1. To evacuate completely and simultaneously Manchuria, except the territory affected by the lease 17,201 1 2 3 4 I 5 | 6 i 7 j 8 ! 9 ! 10 11 12 13 14 15 16 l 1 7 ! 18 19 i 20 21 j j I 23 24 25 of the Liaotung Peninsula, in conformity with the pro- visions of acoitional Article I, annexed to Treaty; and "2. To restore entirely and completely to the exclusive administration of China all portions of Manchuria now in the occupation or under the control of the Japanese or Russian troops, with the exception of the territory above mentioned. "The Imperial Government of Russia declare that they have not in Manchuria any territorial advantages or preferential or exclusive concessions in impairment of Chinese sovereignty or inconsistent with the principle of equal opportunity. * T * * * "Article V - The Imperial Russian Government transfer and assign to the Imperial Government of Jaoan, with the consent of the Government of China, the lease of Port Arthur, Talien and adjacent territory and territorial water and all rights, privileges and eon- cessions connected with or forming part of such lease and they also transfer and assign to the Imperial Government of Japan all public works and properties in the territory affected by the above-mentioned lease. * * * * * "Article VI - The Imperial Russian Government engage to transfer and assign tn the Imperial Government; 17,202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Japan, without compensation anc; with the consent of the Chinese Government, the railway between Changchun anc Port Arthur and all its branches, together with all rights, privileges and properties appertaining thereto in that region, as well as all coal mines in the said region belonging to or worked for the benefit of the railway. * * * * * "Article VII - Japan and Russia engaged to exploit their respective railways in Manchuria exclu- sively for commercial and industrial purposes ana in no wise for strategic purposes. Ĵt Jijt jjt "Article IX - The Imperial Russian Government cede to the Imperial Government of Japan in perpetuity and full sovereignty the southern portion of- the Island of Saghalien and all islands adjacent thereto, and all public" works ana properties thereon. * * * * * "Article XI - Russia engages to arrange with Japan for granting to Japanese subjects rights of fishery along the coasts of the Russian possessions in the Japan, Okhotsk and Behring Seas. * * * * * "Article XII - The Treaty of Commerce and 17 j203 Navigation between Japan and Russia having been annulled by the war, the Imperial Governments of Japan and Russia engage to adopt as the basis of their com- mercial relations, pending the conclusion of a new treaty of commerce and navigation on the basis of the Treaty which was in force previous to the present war, the system of reciprocal treatment on the footing of the most favored nation, in which are included import and export duties, customs formalities, transit and tonnage dues, and the admission and treatment of the agents, subjects and vessels of one country in the territories of the other." I skip the rest of that. This concludes our excerpts from that treaty, if the Tribunal please. 17,204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE PRESIDENT: Mr. Lazarus, for the benefit of one of the members of the bench, will you say just how you propose to rely on the conventions dealing with opium and narcotics and on this Russo-Japanese agree- ment? MR. LAZARUS: Yes, Mr. President. There are witnesses, documents and books which will be pro- duced before this Tribunal that Japan did not, as charged by the prosecution, use opium in China for the two purposes that they have enumerated, namely, the raising of funds for the carrying on of the war, and, secondly, the debauching of the Chinese people. These treaties are against the abuse of opium, and they, by their terms and by the articles we read, allow the use of opium for medicinal purposes. The witnesses and the documents and oral statements will i prove that Japan did not violate these conventions, and that is why we wanted these certain articles before this Tribunal so that they may be referred to, or even if they are not referred to by the witnesses themselves the Tribunal will know what they are talking about. It is the position of the defense that Japan did not violate her treaties; that she worked within the frame- work of those treaties, and that is where our evidence will be adduced. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 17, This Russian agreement which I have just read, is one of a series which will show what was the relative position of the two parties at the time when the series of engagements which have been referred to as aggressive war by the prosecution took place. We will show what their positions and treaty rights were vis-a-vis, and vis-a-vis China also. Therefore, Mr. President, this Russian one is only the first in a series to bring the Court up to date to show what the position and the rights and the relative merits were of the positions taken by each side to the argu- ment . I assure you again that I will read nothing at this time, or with the next documents that I will introduce, that I am not prepared to use myself, or which I know definitely one of the other phases or one of the other individual cases will use, THE PRESIDENT: We will recess for fifteen minutes. (Whereupon, at 1445 a recess was taken until 1500, after which the proceedings were resumed as follows:) 17,206 5 P r a t t 6 Y e 1 d e n 1 2 o« 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MARSHAL OF THE COURT: The International Military Tribunal for the Far Fast is now resumed. THE PRESIDENT: Mr. Yamaoka. MR. YAMAOKA; If tae Tribunal please, we desire next to refer to prosecution exhibit 24. This is one of the series of Washington treaties for 1921, December 13, 1921, to be exact, and includes, among other things, a reference to the termination of the Anrlo-Japanese Alliance. I read from page 3, Article I: "The High Contracting Parties agree as be- tween themselves to respect their rights in relation to their insular possessions and insular dominions in the region of the Pacific Ocean. "If there should develop between any of the High Contracting Parties a controversy arising out of any Pacific question and involving their said rights which is not satisfactorily settled by diplomacy and is likely to affect the harmonious accord now happily subsisting between them, they shall invite the other High Contracting Parties to a joint con- ference to which the whole subject will be referred for consideration and adjustment. "II. "If the said rights are threatened by the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 '19 20 21 22 23 24 25 17 j207 aggressive action of any other Power, the High Con- tracting Parties shall communicate with one another fully and frankly in order to arrive at an under- standing as to the most efficient measures to be taken, jointly or separately, to meet the exigencies of the particular situation. "III. "This Treaty shall remain in force for ten years from the time it shall take effect, and after the expiration of said period it shall continue to be in force subject to the right of any of the High Contracting Parties to terminate it upon twelve months' notice. "IV. "This Treaty shall be ratified as soon as possible in accordance with the constitutional methods of the High Contracting Parties and shall take effect on the deposit of ratifications, which shall take place at Washington, and thereupon the agreement between Great Britain and Japan, which was concluded at London on July 13, 1911, shall terminate. The Government of the United States will transmit to all the Signatory Powers a certified copy of the proces-verbal of the deposit of ratifications." We next refer to prosecution exhibit 26. I 17,208 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will read from the exhibit. "DECLARATION OF JAPAN REGARDING HER RESOLU- TION OF RESPECTING RIGHTS OF NETHERLANDS IN RELATION TO HER INSULAR POSSESSIONS IN REGION OF PACIFIC OCEAN. "Dated February 5, 1921. "Japan has concluded on December 13, 1921, with the United States of America, the British Em- pire and France a treaty with a view to the preserva- tion of the general peace and the maintenance of their rights in relation to their insular possessions and insular dominions in the region of the Pacific Ocean. They have agreed thereby as between them- selves to respect their rights in relation to these p os s es s ions and d omini ons. "The Netherlands not being a signatory of the said treaty and the Netherlands possessions in the region of the Pacific Ocean therefore not being included in the agreement referred to, the Government of Japan, anxious to forestall any conclusion con- trary to the spirit of the treaty, desires to declare that it is firmly resolved to respect the rights of the Netherlands in relation to her insular possessions in the region of the Pacific Ocean." We next refer to prosecution exhibit 27, published August 17, 1923, "DECLARATION OF JAPAN 17 , REGARDING HER RESOLUTION OF RESPECTING RIGHTS OF PORTUGAL IN RELATION TO .HER INSULAR POSSESSIONS IN REGION OF PACIFIC OCEAN." THE PRESIDENT; Fell, you need not read that one, Mr. Yamaoka. It is the same as the Netherlands Declaration. MR. YAMAOKA: Yes, your Honor, it is, except that we did desire, if your Honor please, to invite the Tribunal's attention to it since I think the question of the invasion of Timor is involved. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j210 We next invite the Tribunal's attention to prosecution's exhibit 28, being the Nine-Power Treaty of February 6, 1922. As the Tribunal is aware, this is one of the important basic treaties with which the accused are charged of violating. It is rather short and with the Tribunal's permission I should like to read the first eight articles. (Reading): "Article I. "The Contracting Powers, other than China, agree: "(1) To respect the sovereignty, the independence, and the territorial and administrative integrity of China; "(2) To provide the fullest and most unembarrassed opportunity to China to develop and maintain for herself an effective and stable govern- ment ; "(3) To use their influence for the purpose of effectually establishing and maintaining the principle of equal opportunity '"or the commerce and industry of all nations throughout the territory of China; "(4) To refrain from taking advantage of conditions in China in order to seek special rights or privileges which would abridge the rights of subjects 17,211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or citizens of friendly States, and from countcnancing action inimical to the security of such States. "Article II"-- THE PRESIDENT: You need not read II, surely. MR. YAMAOKA: (Reading) "Article III. "With a view to applying more effectually the principles of the Open Door or equality of oppor- tunity in China -"or the trade and industry of all . nations, the Contracting Powers, other than China, agree that they will not seek, nor support their respective nationals in seeking-- "(a) any arrangement which might purport tc establish in favor of their interests any general superiority of rights with respect to commercial or economic development in any designated region of China; "(b) any such monopoly or preference as would deprive the nationals of any other Power of the right of undertaking any legitimate trade or industry in China, or of participating with the Chinese Government, or with any local authority, in any category or public enterprise, or which by reason of its seope, duration or geographical extent is calculated to frustrate the practical application of / the principle of equal opportunity. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j212 I'Xt is understood, that the foregoing i;!: stipulations of t̂lnis Artiolo are not to be po con- f i l|i' i strued, as to prohibit the acquisition P? such prpper- • f ties or rights as may be neoessary to the conduct of a particular commercial, industrial, or financial undertaking or to the encouragement of invention and na undertakes to be guided by the research^ 1 principles stated In the foregoing stipulations of ! p • this Article in dealing with applications for economio I 1 rights and privileges from Governments and nationals of all foreign countries, whether parties to the present Treaty or notr " i I. 'j| Article IV. ' the Contracting Powers agree not to support 1 ? • i any agreements by their respective nationals with • V' -.. . • ". each other designed to create Spheres of influence M'1 . • • r • or to provide for the enjoyment of mutually exclusive opportunities in designated parts of Chinese territory, !|Article V. China agrees that, throughout the whole of the railways in China, she will not cxercipe or permit 1 * ' ; unfair diprlminption of any kind. In particular ther$ shfjll be no discrimination whatever, direct or '•{'•'ft ' '"' • ! ' indirect, in respect of charges or of facilities on H f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j213 the ground of the nationality of passengers or the countries from which or to which they arc proceeding, or the origin or ownership of goods or the country from which or to which they are consigned, or the nationality or ownership of the ship or other means of conveying such passengers or goods before or after their transport on the Chinese Railways. "The Contracting Powers, other than China, assume a corresponding obligation in respect of any of the aforesaid railways over which they or their nationals are in a position to exercise any control in virtue o" any concession, special agreement or otherwise. "Article VI. "The Contracting Powers, other than China, agree fully to respect China's rights as a neutral in time of war to which China is not a party; and China declares that "rhcn she is a neutral she will observe the obligations of neutrality. "Article VII. "The Contracting Powers agree that, whenever a situation arises which in the opinion of any one of them involves the application of the stipulations of the present Treaty, and renders desirable discus- sion of such application, there shall be full and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j214 frank communication between the Contracting Pov/ors concerned. "Article VIII. "Powers not signatory to the present Treaty, which have Governments recognized by the Signatory Powers and which have treaty relations with China, shall be invited to adhere to the present Treaty. To this end the Government of the United States will make the necessary communications to nonsignatory Powers and will inform the Contracting Powers of the replies received. Adherence by any Power shall become effective on receipt of notice thereof by the Government of the United States." We next desire to invite the Tribunal's attention to prosecution's exhibit 29, page 2, the third paragraph and the following paragraphs: "Article 4. The military training of the natives, otherwise than for purposes of internal police and the local defense of the territory, shall be prohibited. Furthermore, no military or naval bases shall be established or fortifications erected in the territory." Skipping Article 5, to Article 6: "Article 6. The Mandatory shall make to the Council of the League of Nations an annual report 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17,215 to the satisfaction of the Council, containing full I information with regard to the territory, and In- dicating the measures taken to carry out the obligations assumed under Articles 2, 3, 4, and 5." I might mention, if the Tribunal please, that although we are reading and inviting the Tribunal's attention to only certain excerpts, it is not the intention of the defense to be restricted only to these excerpts, and we do rely on such other portions thereof that may become pertinent to the case in the course of the development of the evidence. THE PRESIDENT: Are you having any difficulty with the processing of your documents? MR. YAMAOKA: If the Tribunal please, that is a problem that is plaguing us. THE PRESIDENT: Mr. Smith. y MR. SMITH: If your Honor please, we anticipate all sorts of difficulty. We don't have enough type- writers; we don't have enough stenographers; and it is still a problem how much assistance we are going to get from the prosecution. For example, last week we wore able to borrow four typewriters from the prosecution. Yesterday they sent for them to get them back. Nearly all the counsel in the case are working until late hours in the night, setting up documents 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j216 and trying to get the matter organized; and It will be by grace i" there is no breakdown. Of course, I didn't want to give the impres- sion that what counsel is reading today is merely stalling for time. We are trying to put in the foundation for what is to come later. MR. YAMAOKA: If the Tribunal please, after the reading of these prosecution exhibits, we intended to Introduce into evidence about sixty-three or sixty- five of our own exhibits, all of which, fortunately, are ready. May I now invite the Tribunal's attention to prosecution's exhibit 34, which is the treaty between the United States, the British Empire, France, Italy and Japan on the limitation of naval armaments, signed at Washington on September 6, 1922. As I stated before, we intend to rely on all of the pro- w-ions of this treaty but invite particular attention of the Tribunal to Article 28 on page 5, which reads as follows: THE MONITOR: Mr. Yamaoka, we do not have the Japanese translation of the articles. We only have the introductory remark. If you will read / whatever article you are reading, -e may be able to do it on relay. 17,217 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. YAMAOKAl I am sorry; I meant "18." THE MONITOR: We don't have any articles. We just have the first page translated here. If you will read article 18 and give us the time, I thin-.:, we can do it over the relay system. MR. YAMAOKA: (Reading) "Article XVIII. "Each of the Contracting Powers undertakes riot to dispose by gift, sale or any mode of transfer of any vessel of war in such a manner that such vessel may become a vessel of war in the Navy of any foreign Power. "Article XIX. "The United States, the British Empire and Japan agree that the status quo at the time of the signing of the present Treaty, with regard to forti- fications and naval bases, shall be maintained in their respective territories and possessions specified hereunder:"— i I shall omit the reading of paragraphs numbered (1), (2) and (3) on page 5 and continue from the top of page 6: "The maintenance of the status quo under the foregoing provisions implies that no new forti- fications or naval bases shall be established in the territories and possessions specified; that no measures 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j218 shall bo taken to Incroaso the existing naval facilities for the repair and maintenance of naval forces, and that no increase shall be made in the coast defenses of the territories and possessions above specified. This restriction, however, does not preclude such repair and replacement of worn-out weapons and equip- ment as is' customary in naval and military establish- ments in time of peace." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j219 MR. YAMAOKA: I next desire to invite the Tribunal's attention to the section entitled "Replacement," on pages 10 and 11. I shall not, however, read these sections. I shall continue read- ing from Chapter III on page 12, Article XXI. (Reading) "If during the term of the present Treaty the requirements of the national security of any Contracting Power in respect of naval defence are, in the opinion of that Power, materially affec- ted by any change of circumstances, the Contracting Powers will, at the request of such Power, meet in conference with a view to the reconsideration of the provisions of the Treaty and its amendment by mutual agreement. "In view of possible technical and scientific developments, the United States, after consultation with the other Contracting Powers shall arrange for a conference of all the Contracting Powers which shall convene as soon as possible after the expiration of eight years from the coming into force of the present Treaty to consider what changes, if any, in the Treaty may be necessary to meet such developments. "Article XXII. 17 j220 "Whenever any Contracting Power shall become engaged in a war which in its opinion affects the naval defence of its national security, such Power may after notice t© the other Contracting Powers suspend for the period of hostilities its obligations under the present Treaty other than those under Articles XIII and XVII, provided that such Power shall notify the other Contracting Powers that the emergency is of such a character as to require such suspension. "The remaining Contracting Powers shall in such case consult together with a view to agreement as tfl what temporary modifications, if any, should be made in the Treaty as between themselves. Should such consultation not produce agreement, duly made in accordance with the constitutional methods of the respective Powers, any one of said Contracting Powers may, by giving notice to the other Contracting Powers, suspend for the period of hostilities its obligations under the present treaty, other than those under Articles XIII and XVII. "On the cessation of hestilities the Contract- ing Powers will meet in conference to consider what modifications, if any, should be made in the pro- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j221 visions of the present Treaty. "Article XXIII. "The present Treaty shall remain in force until December 31st, 1936, and in case none of the Contracting Powers shall have given notice two years before that date of its intention to terminate the Treaty, it shall continue in force until the expira- tion of two years from the date on which notice of termination shall be given by one of the Contracting Powers, whereupon the Treaty shall terminate as regards all the Contracting Powers." I next desire to invite the Tribunal's attention to Prosecution exhibit number 35, being the London Naval Treaty of April 22, 1930. I shall read from Article XXI, on page 20. "Article 21. "If, during the term of the present Treaty, the requirements of the national security of any High Contracting Party in respect of vessels of war limi- ted by Part III of the present Treaty are in the rpinion of that Party materially affected by new con- struction of any Power other than those who have been joined in Part III of this Treaty, that High Contract- 17,222 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ing Party will notify the other Parties to Part III as to the increase required to be made in its own tonnage within one or more of the categories of such vessels of war, specifying particularly the proposed increases and the reason therefor, and shall be en- titled t«9 make such increase. Thereupon the other Parties to Part III of this Treaty shall be entitled to make a proportionate increase in the category or categories specified; and the said other Parties shall promptly advise with each other through diplomatic channels as to the situation thus presented. "PART IV. "ARTICLE 22. "The following are accepted as established rules of International Law: "(1) In their action with regard to merchant ships, submarines must conform to the rules of Inter- national Law to which surface vessels are subject. "(2) In particular, except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j223 without having first placed passengers, crew and ship's papers in a place of safety. For this pur- pose the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured., in the existing sea and weather conditions, by the proximity of land, or the pres- ence of another vessel which is in a position to take them on board. "The High Contracting Parties invite all other Powers to express their assent to the above rules. "PART V. "ARTICLE 23. "The present Treaty shall remain in force until the 31st December, 1936, subject to the follow- ing exceptions: "(1) Pert IV shall remain in force without limit" of time 5 "(2) the provisions of Articles 3, 4 and 5, and of Article 11 and Annex II to Part II so far as they relate to aircraft carriers shall remain in force for the same period as the Washington Treaty. "Unless the High Contracting Parties should 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17,224- agreo otherwise by reason of a more general agreement limiting naval armaments, to which they all become parties, they shall meet in conference in 1935 to frame a new treaty to replace and to carry out the purposes of the present Treaty, it being understood that none of the provisions of the present Treaty i shall prejudice the attitude of any of the High Con- tracting Parties at the conference agreed to." With the Tribunal's permission Mr. Collins Howard will continue. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j225 THE PRESIDENT: Mr. Howard. MR. HOWARD: Mr. President and Members of the Tribunal, I would like now to read from exhibit 32 which is a Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy which was signed at Paris, August 27, 1928. I would like to read Articles I, II and III on page 4. THE PRESIDENT: I can assure you we are all thoroughly familiar with this. Most of us could recite it, all of it, perhaps, the Pact of Paris. MR. HOWARD: We have on the list as next exhibit 33, but we shall omit that. Next we have exhibit 31j the Convention Embodying Basic Rules of the Relations Between Japan and the Union of Soviet Socialist Republics, signed at Peking, January 20, 1925- I should like to read Article II, Article IV, Article V and Article VI. (Reading) "Article II. The Union of Soviet Socialist Republics agrees that the Treaty of September 5th, 1905, shall remain in full force. "It is agreed that the Treaties, Conventions and Agreements, other than the said Treaty of Ports- mouth, which were concluded between Japan and Russia 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17, prior to November 7, 1917, shall be re-examined at a Conference to be subsequently held between the Governments of the High Contracting Parties and are liable to revision or annulment as altered circum- stances may require. "Article IV. The Governments of the High Contracting Parties agree that upon the coming into force of the present Convention, they shall proceed to the conclusion of a treaty of commerce and navi- gation in conformity with the principles hereunder mentioned, and that pending the conclusion of such a treaty, the general intercourse between the two countries shall be regulated by those principles. "(1) The subjects or citizens of each of the High Contracting Parties shall in accordance with the laws of the country: (a) have liberty to enter, travel and reside in the territories of the other, and (b) enjoy constant and complete protection for the safety of their lives and property. "(2) Each of the High Contracting Parties shall in accordance with the laws of the country accord in its territories to the subjects or citizens of the other, to the widest possible extent and on condition of reciprocity, the right of private owner- ship and the liberty to engage in commerce, navigation, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j227 industries, and other peaceful pursuits. "(3) Without prejudice to the right of each Contracting Party to regulate by its own laws the system of international trade in that country, it is understood that neither Contracting Party shall apply .in discrimination against the other party any measures of prohibition, restriction or impost which may serve to hamper the growth of the intercourse, economic or otherwise, between the two countries, it being the intention of bcth Parties to place the commerce, navigation and industry of each country, as far as possible, on the footing of the most favoured nation. "The Governments of the High Contracting Parties further agree that they shall enter into negotiations, from time to time as circumstances may require, for the conclusion of special arrangements relative to commerce and navigation to adjust and to promote economic relations between the two countries. "Article V. The High Contracting Parties solemnly affirm their desire and intention to live in peace and amity with each other, scrupulously to respect the undoubted right cf a State to order its own life within its own jurisdiction in its own way, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j228 to refrain and restrain all persons in any governmental service for them, and all organizations in receipt of any financial assistance from them, from any act overt or covert liable in any way whatever to endanger the order and security in any part of the territories of Japan or the Union of Soviet Socialist "Republics. "It is further agreed that neither Contracting Party shall permit the presence in the territories under its jurisdiction -- (a) of organizations or groups pretending to be the Government for any part of the territories cf the other Part}/-, or (b) of alien subjects or citizens who may be found to be actually carrying on political activities for such organizations or groups. "Article VI. In the interest of promoting economic relations between the two countries, and taking into consideration, the needs of Japan with regard to natural resources, the Government of the Union of Soviet Socialist Republics is willing to grant to Japanese subjects, companies and associations concessions for the exploitation of minerals, forest and other natural resources in all the territories of the Union of Soviet Socialist Republics." THE PRESIDENT: Why do you rely on that docu- ment , Mr. Howard ? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 j229 MR. HOWARD: This is the document since 1925 through which Japan and Russia, or the Soviet Socialist Republics, have been doing business. THE PRESIDENT: Well, how does it meet the charges in the Indictment in respect of the Soviets? MR. HOWARD: The prosecution offered it in evidence, your Honor, and we have to contest it. THE PRESIDENT: But you are relying on it, you see. They relied on it, and now you do. MR. HOWARD: We are using this document to show that Japan complied with it and that Japan acted within the terms of this. I would like now to read Article III which I omitted in the first reading. (Reading) "Article III. The Governments of the High Contracting Parties agree that upon the coming into force of the present Convention, they shall proceed to the revision of the Fishery Con- vention of 1907, taking into consideration such changes as may have taken place in the general con- ditions since the conclusion of the said Fishery Convention. "Pending the conclusion of a convention so revised, the Government of the Union of Soviet Socialist Republics shall maintain the practices established in 17,230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1924 relating to the lease of fishery lots to Japanese subjects." Exhibit 3 6 , the Pact Against the Ccminimist International. I should like to read Articles 1 and 2. (Reading) "Article 1. The contracting parties agree to inform each other of the Communist International's activities, to discuss necessary measures for defense and promise tc fulfill such measures through close cooperation, "Article 2. The contracting parties will jointly invite a third naticn, whose internal peace- is menaced by destructive activities of the Communist International, to take defense measures in the spirit of this pact, or to participate in the pact." Page 2, second paragraph, this is an Accessory Protocol to the Pact Against the Communist International. (Reading) "(a) The authorities cf the two contracting parties will closely cooperate with each other as regards the exchange cf information relating to the activities of the Communist International and the enlightenment and defense measures against the Communist International. "(b) The authorities of the two contracting 17,231 » 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ! 20 21 22 23 24 25 parties will take drastic'steps, within the bounds of the existing law, in dealing with persons who, at home or abroad, directly cr indirectly, are serving with the Communist International or fester its destructive activity. In order to facilitate the cooperation of the authorities of the two contracting parties, as provided in forementioned (a), a standing com- mission will be established. Other defense measures necessary for checking the destructive activities of the Corrrunist International will be studied and discussed by the said commission." Page 3, Article I. (Reading) "Italy participates in the Treaty and its attribute protocol against the Cormunist International, which has been concluded between Japan and Germany on 25 November 1936. The texts of the said Pact and acccssorv protocol are attached as appendices of this protocol. "Article II." THE PRESIDENT: Well, you need not read Article II. We will adjourn until half-past nine tomorrow morning. (Whereupon, at 1600, an adjournment was taken until Wednesday, 26 February 1947, at 0930.)
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February 25, 1947 - Index (p. 17, 113-17, 231)
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