DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL
In any event, this theory of reformation, in international life, need not take the criminal responsibility beyond the STATE concerned. The theory proceeds on this footing. If a person does a wrong to another, he does it from an exaggeration of his own personality, and this aggressiveness must be restrained and the person made to realize that his desires do not rule the world, but that the interests of the community are determinative. Hence, punishment is designed to be the influence brought to bear on the person in order to bring to his consciousness the conditionality of his existence, and to keep it within its limits. This is done by the infliction of such suffering as would cure
the delinquent of his individualistic excess. For this purpose, an offending State itself can be effectively punished. Indeed the punishment can be effective only if the delinquent State as such is punished.
In my opinion it is inappropriate to introduce criminal responsibility of the agents of a state in international life for the purpose of retribution. Retribution, in the proper sense of the term, means the bringing home to the criminal the legitimate consequences of his conduct legitimate from the ethical standpoint. This would involve the determination of the degree of his moral responsibility, a task that is an impossibility for any legal Tribunal even in national life. Conditions of knowledge, of training, of opportunities for moral development, of social environment generally and of motive fall to be searched out even in justifying criminal responsibility on this ground in national life. In international life many other factors would fall to be considered before one can justify criminal responsibility on this retributive theory.
The only justification that remains for the introduction of such a conception in international life is revenge, a justification which all those who are demanding this trial are disclaiming.
It may be contended that indignation at a wrong done is a righteous feeling and that that feeling itself justifies the criminal law.
It is perhaps right that we should feel a certain satisfaction and recognize a certain fitness in the suffering of one who has done an international wrong. It may even be morally obligatory upon us to feel indignant at a wrong done.
But it would be going too far to say that a demand for the gratification of this feeling of revenge alone would justify a criminal law. In national systems a criminal law, while satisfying this feeling of revenge, is calculated to do something more of real ethical value and that is the real justification of the law. Though vengeance might be the seed out of which criminal justice has grown, the paramount object of such is the prevention of offenses by the menace of law.
The mere feeling of vengeance is not of any ethical value. It is not right that we should wish evil to the offender unless it has the possibility of yielding any good. Two wholly distinct feelings require consideration in this connection. The one is a feeling of moral revulsion and is directed against the crime. The other is a desire for vengeance and is directed against the criminal. To revenge oneself is, in truth, but to add another evil to that which has already been done, and the admission of it as a right is, in effect, a negation of all civil and social order, for thereby are justified acts of violence not regulated by nor exercised with reference to, the social good.
There are few who in modern times assert the abstract rightfulness of a desire for vengeance.
I am not unmindful of the view expressed by Fitzjames Stephen wherein he asserts the rightfulness of vengeance. “The infliction of punishment by law", says Stephen, “gives definite expression and a solemn ratification to the hatred which is excited by the commission of the offense, and which constitutes the moral or popular, as distinguished from the conscientious, sanction of that part of morality which is also sanctioned by the criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. I think it is highly desirable”, he continues, “that criminals should be hated, that the punishments inflicted upon them should be so contrived as to give expression to that hatred, and to justify it so far as the public provision of means for expressing and gratifying a healthy natural sentiment can justify and encourage it.”
Though apparently this seems to indicate as if Stephen defends the desire for vengeance as ethically proper, on a careful examination of the thought thus expressed by him it would be found that what he really has in mind is that feeling of indignation which we justly feel at the commission of a wrong rather than the feeling of revenge pure and simple. If from his thought the belief in the possible educative or preventive value of the punishment is eliminated then the sentiment hardly justifies the law. Indignation arises on the commission of the wrong act. The justification of the law is its preventive capacity. If in an organization this prevention is not at all possible, the justification for its introduction there is absent: The organization is inapt for the introduction of criminal punishment.
In the feeling of indignation, the element that really matters much for the community is the expression of disapprobation. This disapproving feeling prevails primarily against the act; but of necessity it extends also to its author. The question is what is the possible and proper method of expressing this disapproval! In my opinion at the present stage of the international society, the method that would necessarily depend on the contingency of a war being lost, and that would be available only against the vanquished, is not what can be justified on any ethical ground. There are other available methods of giving expression to this disapprobation and in the present stage those other methods of expressing world opinion should satisfy the international community.
According to Mr. Trainin, before the present World War, “The policy of AGGRESSIVE IMPERIALISTIC SUPREMACY, a constant threat to peace, a policy systematically giving ample scope for the use of force in the sphere of international relations, naturally could not contribute to the development and strengthening of international law as a system of rules protecting the liberty, independence and sovereignty of nations.”
“But”, Mr. Trainin says, “it would be a serious mistake to draw the general conclusion from this fact that the introduction of the problem of international criminal law was inopportune or fruitless: This would be to disregard the difficulty and complexity of international relations."
According to him even before the Second World War there were two “ tendencies of the historical process”, —one being the collision of imperialistic interests, the daily struggle in the field of international relations and the futility of international law—the tendency reflecting the policy of the aggressive nations in the imperialistic era—and the other, just a parallel and opposite to the former, being the struggle for peace and liberty and independence of nations, a tendency in which is reflected the policy of a new and powerful international factor—the Socialist State of the toilers, the U. S. S. R.
Thus there was some scope for the introduction of the conception of criminal law in international life in view of the second tendency named above.
This tendency, says Mr. Trainin, has been given extraordinary scope and enormous power by the Second War. The nations have now agreed that they “respect the right of all nations to choose their own form of government and will strive to attain complete cooperation among all nations in the economic field in order to guarantee a higher standard of living, economic development and social security”. He refers to the Moscow Declaration of October 30, 1943 as having confirmed this solemnly.
It is not very clear, but it seems that Mr. Trainin takes this solemn resolve on the part of the great powers as establishing the base of the international life and consequently as supplying the basis of criminality in the international system. He says: “Just as earlier, in the period of full play of imperialistic plundering, the weakness of international legal principles hindered the development of a system of measures to prevent the violation of international law, now, on the contrary, the strengthening of the laws which are the basis of international relations must consequently lead to the strengthening of the battle against all the elements which dare, through fraud, terror or insane ideas upset international legal order”.
It seems Mr. Trainin here takes the Moscow Declaration as establishing an international association completely under the reign of law and consequently making any breach of its peace criminal. In this view all wars will be crime unless they can be justified on the strength of the right of private defense as in the national systems.
In another place Mr. Trainin gives credit to the capitalistic system as developing complicated relations between individual nations. From this, according to him, a steady international association has developed. “Despite the conflicting interests of various nations, despite the difference in patterns of the political systems of countries, this international association forms innumerable threads connecting peoples and countries and represents, in fact, a great economic, political and cultural value.” An international crime, according to Mr. Trainin, is an attempt against the association between countries, between peoples, against the connections which constitute the basis of relations between nations and countries. An international crime is said to be one which is directed toward the deterioration, the hampering and the disruption of these connections.
I have elsewhere given my view of the character of the so-called international community as it stood on the eve of the Second World War. It was simply a co-ordinated body of several independent sovereign units and certainly was not a body of which the order or security could be said to have been provided by law.
By saying this, I do not mean to suggest any absolute negation of international law. It is not my suggestion that the observance of the rules of international law, so far as these go, is not a matter of obligation. These rules might have resulted from the calculation that their observance was not incompatible with the interest of the state.
Yet, their observance need not be characterized as the result of such calculation. A state before being a willing party to a rule, might have willed thus on the basis of some such calculation, but after contribution of its “will”, which is essential for the creation of the rule, it may not retain any right to withdraw from the obligation of the rule thus created: The rule thus exists independently of the will of the parties: It is of no consequence that in coming into existence it had to depend on such will. Yet, simply because the several states are thus subjected to certain obligatory rules, it does not follow that the states have formed a community under a reignoflaw. Its order or security is not yet provided by law.
PEACE IN SUCH A COMMUNITY is only a negative concept— it is simply a negation of war, or an assurance of the status quo. Even now each state is left to perform for itself the distributive function. The basis of international relations is still the competitive struggle of states, a struggle for the solution of which there is still no judge, no executor, no standard of decision. There are still dominated and enslaved nations, and there is no provision anywhere in the system for any peaceful readjustment without struggle. It is left to the nations themselves to see the readjustment.
Even a pact or a covenant which purports to bind the parties not to seek a solution of their disputes by other than pacific means, contains no specific obligation to submit controversies to any binding settlement, judicial or otherwise. It is a recognized rule of international life that in the absence of an a- greement to the contrary, no state is bound to submit its disputes with another state to a binding judicial decision or to a method of settlement resulting in a solution binding upon both parties. This is a fundamental gap in the international system. War alone was designed to fill this gap—war as a legitimate instrument of self-help against an international wrong, as also as an act of national sovereignty for the purpose of changing existing rights independently of the objective merits of the attempted change. Even when a pact is made to renounce war the gap is left almost unobserved and certainly unprovided for.
THE BASIS OF A SOCIETY SO DESIGNED IS NOT THAT PEACE WHICH MEANS PUBLIC ORDER OR SECURITY AS PROVIDED BY LAW AND OF WHICH AN INFRINGEMENT BECOMES A CRIME. For a community thus designed, the conception of crime is still premature.
The most ingenious of the reasons that were given for fixing the criminal responsibility on the accused is that thereby the character of the whole defeated nation will be amply vindicated, and this will help the promotion of better understanding and good feeling between the individual citizens of the defeated and of the victor states. The entire defeated nation, it is said, has, by the war, provoked the hatred of the peace-loving nations. By the trial and punishment of these few persons who were really responsible for the war, the world will know that the defeated nation like all other nations was equally sinned against by these warlords.
This will be a real and substantial contribution to the future peace of the world by repelling from the minds of the peace-loving nations all hatred towards the defeated nation and replacing such hatred with sympathy and good feeling. Assuming it to be so, I do not see how this coveted object would justify the punishment of these individuals by a court of law. If such is the object of a trial like the present, the same result could easily have been achieved by a commission of enquiry for war responsibility. Such a commision might have been manned by competent judges from different nationalities and their declaration would have produced the desired effect without any unnecessary straining of the law.
After giving my anxious and careful consideration to the reasons given by the prosecution as also to the opinions of the various authorities I have arrived at the conclusion:
1. That no category of war became criminal or illegal in international life.
2. That the individuals comprising the government and functioning as agents of that government incur no criminal responsibility in international law for the acts alleged.
3. That the international community has not as yet reached a stage which would make it expedient to include judicial process for condemning and punishing either states or individuals.
I have not said anything about the alleged object of the Japanese plan or conspiracy. I believe no one will seriously contend that domination of one nation by another became a crime in international life. Apart from the question of legality or otherwise of the means designed to achieve this object it must be held that the object itself was not yet illegal or criminal in international life. In any other view, the entire international community would be a community of criminal races. At least many of the powerful nations are living this sort of life and if these acts are criminal then the entire international community is living that criminal life, some actually committing the crime and others becoming accessories after the fact in these crimes. No nation has as yet treated such acts as crimes and all the powerful nations continue close relations with the nations that had committed such acts.
Questions of law are not decided in an intellectual quarantine area in which legal doctrine and the local history of the dispute alone are retained and all else is forcibly excluded. We cannot afford to be ignorant of the world in which disputes arise.
Mr. Trainin’ s hopes are based on the Moscow Declaration of 1943 whereby, according to him, the nations have NOW agreed that they “respect the right of ALL nations to choose their own form of government”. His hopes, however, are not yet realized in actual life and certainly BEFORE the Second World War, during the period we are here concerned with, the tendency reflecting the policy of the powerful nations did not even offer any scope for such a hope.
In the circumstances I would prefer the view that at least before the Second World War international law did not develop so as to make these acts criminal or illegal.
WHAT IS “AGGRESSIVE WAR"?
There is yet another question which must be answered before we can deal with the evidence in the case; We must determine what is meant by an aggressive war.
Dr. Schwarzenberger in his ‘Power Politics’ says that while in a system of Power Politics the distinction between aggressive and defensive wars is only of propagandist relevance, and the naturalistic distinction between just and unjust wars was bound to degenerate into a meaningless ideology, the difference is essential in an international community which seriously attempts to limit resort to war to exceptional cases, or to abolish it completely.
At the Paris Conference of 1936 of the International Law Association the question of the right of self-defense came up for discussion. It was however, resolved to adjourn the question for the further consideration of the Committee on “Conciliation between nations." At the time of this adjournment, however, the examination of the question of aggression was added to it as it was considered that the two could not be separated from each other.
The Committee at the next conference of the Association held in 1938 at Amsterdam reported that the Association was not likely “ to arrive at a general agreement with regard to the definition and the INCIDENTS of the right of self- defense." The Committee accordingly suggested that the further consideration of the subject as also of the question of aggression be adjourned.
The following members served on the committee: Professors J. L. Brier - ly, H. Lauterpacht and Messrs H. E. Caloyanni, C. John Colombos, C. G. Dehn, Albr. D. Dieckhoff, B. Geocze, F. T. Grey, F. N. Keen, M. J. Makowski, G. M. Palliccia, and W. A. Bewes and Sir J. Fischer Williams.
The report came before the Conference presided over by Lord MacMillan.
Mr. Bewes in presenting this report observed that the Committee without division approved “that they should wait until, among other things, LARGE DIVERSITIES OF OPINION between the different states had quieted down in some way or other, when they should have a chance of doing some useful work.”
Mr. Temple Grey characterized the question of aggression as having become A HARDY ANNUAL and wanted to have an exchange of views on what he called “a difficult part of a difficult subject”. He referred to some prior attempts at a definition of aggression in certain conventions, notably between the Soviet Russia and the neighbouring powers. One such definition was:“He is an aggressor who is found on enemy territory." Mr. Grey observed that this definition had the DEMERIT of appearing to make the matter much more simple than it is. He then referred to an undertaking in Article 5 of the Pact of Non-Aggression between France and Russia and observed that this was an interesting step towards taking into consideration other than mere mechanical methods of defense. Mr. Grey then said:
“It does not, however, deal with certain things which are hostile acts, that is to say, he may be an aggressor who indulges in unfriendly acts which are not physical and who takes part in international mischiefmaking .”
He referred to adverse PROPAGANDA as one such act.
Mr. Whitman suggested that, “Whenever trouble brews or starts, the nation which declines to submit the question involved to some peaceful determination either by arbitration or by some tribunal to be determined, is the aggressor. If either part is so unwilling, nothing can be done but to let them fight it out.”
Mr. Rabagliati observed that: “If it is impossible to define ‘aggression’ at a time when the world is reverberating with aggressions and threats of aggressions, it will probably never be possible to define it at all.” He further observed that: “As between self-defense and aggression there is sometimes such a balance as makes it almost impossible to say WHICH IS WHICH.”
Lord MacMillan said that he personally had always taken the view that nothing was more dangerous than definition—that in definition latet pericu- lum. He was for postponing the consideration of the question. Ultimately the question was postponed.
The views quoted above, of course, have no official authority, the Institute being a wholly unofficial body of international jurists. Yet, from the eminence of its members, its pronouncements are always entitled to respect.
At the Paris Conference a definition of the right of self-defense was proposed which defined purely from what might be said to be a pre-war view of self-defense.
Mr. Quincy Wright in 1935 dealt with the concept of aggression in international law; but in proposing a definition he expressly stated THAT THE DEFINITION PROPOSED DID NOT DEMAND THAT THE CONSEQUENCE OF AGGRESSION BE OF THE NATURE OF CRIMINAL LIABILITY. According to him:
“An aggressor is a state which may be subjected to preventive, deterrent, or remedial measures by other states because of its violation of an obligation not to resort to force.” He emphasized that aggression is not the equivalent of the violation of an international obligation. Even if a state violates an obligation not to resort to force, it would still not be an aggressor under the definition proposed unless the law draws some practical consequence therefrom. The measures consequent upon aggression may be preventive, deterrent or remedial rather than punitive, and their application may be discretionary rather than obligatory with other states; but unless there is some sanction, some legal consequences of the breach, the breaker is not, under this definition, an aggressor.
Mr. Wright distinguishes three classes of tests of aggression, each again being divided into four sub-classes according as attention is directed primarily to legal, military, psychological or procedural events. His three principal classes are:
1. The tests giving weight to events which occurred before fighting began.
2. The tests confining attention to events which occurred at the time fighting began.
3. The tests based upon events after fighting is in progress.
The first class conforms best to the usual conception of justice, though it is incapable of rapid application. Hundreds of thousands of events may have
to be examined before the just evaluation of a controversy may be possible and this is bound to be a matter of long and laborious analysis.
The second class, according to Mr. Wright, conforms less to the usual conception of justice but perhaps more to the usual conception of aggression. Even here there is the difficulty that the events occurring where and when hostilities began are likely to be witnessed only by excited or prejudiced observers. Tests of this class, being dependent upon an appreciation of unexpected circumstances at a time of unusual tension, are seldom capable of precise conclusions which a war-prevention procedure demands.
The third class contemplates the following definition of an aggressor: “An aggressor is a state which is under an obligation not to resort to force, which is employing force against another state, and which refuses to accept an armistice proposed in accordance with a procedure which it has accepted to implement its no-force obligation.”
Mr. Quincy Wright elsewhere points out that the League of Nations has moved toward the following different tests each adopted for a distinctive use:
1. The state responsible for THE FIRST ACT OF WAR, especially by invasion of foreign territory, is the aggressor; This test was proposed in connection with disarmament discussions.
2. The state UNDER THE LEAST DEFENSIVE NECESSITY at the time hostilities began is the aggressor: This was proposed in connection with claims for reparation after hostilities have ceased.
3. A state is an aggressor if it REFUSES TO ACCEPT AN ARMISTICE proposed in accordance with a procedure which it has accepted to implement its no-force obligation: This test has been suggested in most of the disputes involving hostilities before the League. Instead of examining the temporal priority of the belligerents in committing acts of war, or the moral necessities of the belligerents at the time fighting began, the League has examined the willingness of the belligerents to stop fighting when invited to do so.
Mr. Quincy Wright’s own view seems to be to accept the first of the above three tests. According to him, a state of war can never exist among parties to the Pact of Paris without violation of the Pact. The initiation of a state of war, Mr. Wright says, can hardly be a proper defensive measure. The term defense has, however, tended to be used to cover all the unnamed circumstances which should extenuate the strict application of the rule against force.
The definition proposed by Mr. Wright, however, would not help us very much as will be seen later. He himself limited his definition to purposes OTHER THAN DETERMINATION OF CRIMINAL LIABILITY.
Some suggest that a definition of the term is neither expedient nor necessary. A Court would experience no difficulty, it is said, on the facts in each particular case, in determining whether there has been an aggression or not. Certainly in definition there is danger. But I do not agree that all danger is eliminated simply by leaving the term undefined and thus allowing it to remain chameleonic. It may be easy for every nation to determine for others what is aggression. Perhaps every nation will say that war against what it considers to be its interest is aggressive. No term is more elastic or more susceptible of interested interpretation, whether by individuals, or by groups, than aggression. But when a court is called upon to determine the question it may not always be so easy for it to come to a decision.
In my opinion in international life as at present organized it is not possible “by the simple aid of popular knowledge” to find out which category of war is to be condemned as agrressive. The duty of definition in such a case is obvious; it would not only make the matter clear but would also give it its true place in the scheme of knowledge showing its origin and connection with other cognate facts and determining its essentials. The so-called “simple popular” idea in a case like this would not be sufficient and we must not make a confusion between the idea entertained by a particular group and the real popular idea of the entire international community. It is a question of a clear agreement of the different nations as to the measures which they would deem to be aggressive.
The question involves further difficulty in view of the fact that the fundamental basis of these trials has been declared to be the organization of international life on the footing of humanity, but as a matter of fact there are still nations under the domination of another nation. The question would naturally arise whether the term aggressive would have reference to the interest of the dominated nation as distinct from that of the dominating power, or whether it would only have reference to the status quo. It is obvious that there is thus the possibility of want of agreement in popular ideas if the word ‘popular’ is to be taken in a sense comprehensive enough to embrace the dominated population as well. I do not see any reason why in a community organized on the basis of humanity, the interest of the dominated people should not be adverted to in such a case, if the word humanity again is not being used in any specific sense so as to exclude reference to the unlucky dominated nations of the world.
One of the most essential attributes of law is its predicability. It is perhaps this predicability which makes justice according to law preferable to justice without law,—legislative or executive justice. The excellence of justice according to law rests upon the fact that judges are not free to render decision based purely upon their personal predilections and peculiar dispositions, no matter how good or how wise they may be. To leave the aggressive character of war to be determined according to “the popular sense” or “the general moral sense” of the humanity is to rob the law of its predicability. In those fields of international controversy where passion runs high and where even now nations are only beginning to be induced to substitute for war settlement by peaceful action, the law has a very difficult and delicate function to fulfil. Here, at any rate, no rule of law should be made to stand on a veritable quicksand of shifting opinion and ill-considered thought. Let not its very vagueness be accepted as the magic jingle through whose potency bewitched adventurers would be delivered from all their troubles.
I have already considered the views of Dr. Lauterpacht as to the legal position of the Pact of Paris and as to reservation of the right of self-defense having reference only to the faculty of determining what action should be taken when there is periculum in mora. According to him the legality of recourse to force in self-defense is in each particular case a proper subject for impartial determination by judicial or other bodies. I have already given my reason why I could not accept this view. Dr. Lauterpacht, however, in the connection says something about the definition of aggression which may be of some use for our present purpose.
The learned Professor proposes to lay down in advance in what circumstances recourse to force, including war, must be regarded prima facie as a measure of self-defense, and says: “Such circumstances constitute aggression on the part of the State against which the measures of self-defense are directed.” He then refers to a number of treaties in which different states have adopted a definition of aggression and concludes by recommending further attempts in that direction. According to him such attempts cannot be regarded either as legally unsound or as inimical to justice.
The treaties referred to by Dr. Lauterpacht are:
The conventions between Russia and the several other states for the definition of aggression.
According to Article II of the Convention for the definition of aggression of July 3, 1933, between Russia and Afghanistan, Esthonia, Latvia, Persia, Poland, Roumania and Turkey, the aggressor in an international conflict will be considered the state which will be the first to commit any of the following acts:
1. Declaration of war against another State.
2. Invasion by armed forces, even without a declaration of war, of the territory of another State.
3. An attack by armed land, naval, or air forces, even without a declaration of war, upon the territory, naval vessels, or aircraft of another state.
4. Naval blockade of the coasts or ports of another State.
5. Aid to armed bands formed on the territory of a State and invading the territory of another State, or refusal, despite demands on the part of the State subjected to attack, to take all possible measures on its own territory to deprive the said bands of any aid and protection .
The learned professor then points out that this definition followed closely the definition of aggression proposed in May 1933 by the Committee on Security Questions of the Disarmament Conference. The Draft Convention submitted by Great Britain to the Disarmament Conference in 1933 contained a definition of ‘resort to war’ within the meaning of Article 16 of the covenant which followed closely the definition quoted above except as to part 4.
Closely following this, Mr. Justice Jackson, at the Nuremberg trial, proposed a definition of ‘ aggressor ’ for the purpose of determining the criminali
ty of the act of aggression. Mr. Jackson said:
“An aggressor is generally held to be that state which is the first to commit any of the following acts:
“(l) Declaration of war upon another state.
“(2) Invasion by its armed forces, with or without declaration of war, of the territory of another state.
“(3) Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another state.
“(4) Provisions of support to armed bands formed in the territory of another state, or refusal notwithstanding the request of the invaded state, to take in its own territory, all the measures in its power to deprive those bands of all assistance or protection.”
According to Mr. Jackson:
“It is the general view that no political, military, economic, or other considerations shall serve as an excuse or justification for such actions; but exercise of the right of legitimate self-defense, that is to say, RESISTANCE to an act of aggression, or ACTION TO ASSIST a state which has been subjected to aggression, shall not constitute a war of aggression.
He emphasized that by these trials we are not inquiring into THE CONDITIONS WHICH CONTRIBUTED TO CAUSING THIS WAR. He pointed out the difference between the charge that this war was one of aggression and a position that Germany had no grievances and said:
“It is no part of our task to vindicate the European status quo as of 1935, or as of any other date. The United States does not desire to enter into discussion of the complicated pre-war currents of European Politics ....
“Our position is that whatever grievances a nation may have, however objectionable it finds the status quoy aggressive warfare is an illegal means for settling those grievances or for altering those conditions .”
We need not stop here to consider whether a static conception of peace is at all justifiable in international relations. I am not sure if it is possible to create ‘peace’ once for all, and if there can be status quo which is to be eternal. At any rate in the present state of international relations such a static idea of peace is absolutely untenable. Certainly, dominated nations of the present day status quo cannot be made to submit to eternal domination only in the name of peace. International law must be prepared to face the problem of bringing within juridical limits the politico-historical evolution of mankind which up to now has been accomplished chiefly through war. War and other methods of SELF-HELP BY FORCE can be effectively excluded only when this problem is solved, and it is only then that we can think of introducing criminal responsibility for efforts at adjustment by means other than peaceful. Before the introduction of criminal responsibility for such efforts the international law must succeed in establishing rules for effecting peaceful changes.
Until then there can hardly be any justification for any direct and indirect attempt at maintaining, in the name of humanity and justice, the very status quo which might have been organized and hitherto maintained only by force by pure opportunist “Have and Holders”, and, which, we know, we cannot undertake to vindicate. The part of humanity which has been lucky enough to enjoy political freedom can now well afford to have the deterministic ascetic outlook of life, and may think of peace in terms of political status quo. But every part of humanity has not been equally lucky and a considerable part is still haunted by the wishful thinking about escape from political dominations.
To them, the present age is faced with not only the menace of totalitarianism but also the ACTUAL PLAGUE of imperialism. They have not as yet been in a position to entertain a simple belief in a valiant god struggling to establish a real democratic order in the Universe. They know how the present state of things came into being. A swordsman may genuinely be eager to return the weapon to its scabbard at the earliest possible moment after using it successfully for his gain, if he can keep his spoil without having to use it anymore. But, perhaps one thing which you cannot do with weapons like bayonets and swords is that you cannot sit on them.
The approach suggested by Mr. Justice Jackson might have appealed to us had we been dealing with a recognized rule of law already settled with that limitation. But in a field where we are called upon to exercise our creative function, where we are called upon to have recourse to the progressive character of international law, and to declare and apply, in the name of justice and humanity, a newly found norm in order to fix criminal liability on a group of persons who acted in a particular manner while working the constitution of their country, I do not see how we can shut our eyes to the period beyond an arbitrarily fixed limit. The approach suggested would certainly deliver us from all our troubles and would afford an easy solution of all our bewilderment. But I am not sure if it would lead us to anything which in the name of humanity we can call wholesome and salutary.
When international law will be made to yield the definition suggested by Mr. Justice Jackson, it would be nothing but “an ideological cloak, intended to disguise the vested interests of the interstate sphere and to serve as a first line for their defense.” A device to perpetuate a casual status quo without providing any machinery for peaceful change may not command much respect in international life.
This emphasis on an arbitrarily fixed status quo would certainly not lead us to any understanding of the real conditions of peace and would fail to build any respect for justice. A trial conducted on this basis may be sufficiently unrevealing so as to shut out the essential facts responsible for the world trouble and may, at the same time, afford ample opportunity for a collective expression of retributive and aggressive sentiment. Guilt is usually an elusive idea, especially when it is to be assigned under the pressure of strong emotions stimulated and snarled by wartime propaganda. When to this we add the proposed arbitrary and artificial limit to our enquiry, the resulting situation may eminently suit the occasion for any vindictive and oratorical plea in the language of emotional generalities. But such an enquiry may only entertain; it would hardly educate. It would contribute little to a comprehension of the causes of war or the conditions of peace.
Some of the tests suggested above would land us in some difficulties in this case. We must remember that the U. S. S. R. and the Netherlands are some of the prosecuting nations in this case and both declared war against Japan first. So far as the U. S. S. R. is concerned, even if self-defense be taken as admitting of initiation of war under certain conditions, the circumstances in which that state declared war against Japan would hardly justify it as war necessitated by any consideration of defense. It would perhaps be difficult to read “an instant and overwhelming necessity for self-defense, leaving no choice of means, and no moment of deliberation” in a war against already defeated Japan.
The Prosecution in its summation says: “We do not deny that in the Spring of 1944 the Japanese General Staff for the first time had to begin drafting defensive plans contemplating war with the U. S. S. R. . But that took place when the Soviet Army had already broken the spine of the German Fascist army and the Japanese Army was suffering defeat from the Allies." It may be difficult to guess any necessity, instant or otherwise, overwhelming or otherwise, for defense where there is no danger of attack. Japan had already been fatally weakened and the U. S. S. R. knew it. Japan was given the first atom blast on the 6th August 1945.
The U. S. S. R. declared war against Japan on 8th August 1945. The Potsdam Declaration demanding unconditional surrender of Japan was issued on July 26, 1945. Japan had requested the Soviet Union to mediate in the early part of June, 1945, and ultimately offered to surrender on August 10, 1945. In the meantime, on 8 August, theU.S.S.R. declared war stating the following in justification of the action thus taken by it:
“After the rout and capitulation of the Hitlerite Germany, Japan is the only great power which is still for the continuation of the war.
“The demand of the unconditional surrender of the Japanese armed Forces made by the Three Powers—the United States of America, Great Britain and China—on July 26, this year, was declined by Japan. Thus the proposal made by the Japanese Government to the Soviet Union containing the request of mediation in the war in the Far East loses all ground.
“Taking into consideration the fact that Japan refused to surrender, the Allied Powers made a proposal to the Soviet Government to join the war against the Japanese aggression and thus to shorten the period of time necessary to end the war, to reduce the number of victims, and to contribute to the speedy restoration of peace in the world. True to the allied cause, the Soviet Government accepted the proposal made by the Allied Powers and joined the declaration of the Allied Powers made on July 26, this year.
“The Soviet Government believes that such a policy of its is the only way to bring nearer the advent of peace, to free the nations from further sacrifices and sufferings, and to give a chance to the Japanese people to avoid those dangers and damages, which were suffered by Germany, after she had dedined the unconditional capitulation. On the basis of the above said, the Soviet Government declares, that from tomorrow, i. e., August 9, the Soviet Union will consider herself to be in a state of war against Japan.”
I have given the above extract from the prosecution document, Exhibit No. 64. The declaration does not refer to any periculum in mora and, as a matter of fact, there was none. The U. S. S. R. did not say, and in the circumstances disclosed by the evidence in this case, could not have said, that it believed its very life and vital interests to have been endangered beyond possibility of redress if immediate action was not taken. In its summation the prosecution says that “true to her commitment to the Allies, the U. S. S. R. at the request of the U. S. A. and Great Britain, declared war on the Japanese aggressor on August 9, 1945, thereby contributing to the speedier termination of World War II ...." The evidence discloses that this action on the part of the U. S. S. R. HAD BEEN ARRANGED BEFOREHAND with the other allied Powers who were all parties to the Pact of Paris. In my opinion we should not put such a construction on the Pact which would lead us to hold that all these big powers participated in a criminal act.
The justification offered by the U. S. S. R. in this document is certainly not one of self-defense; and, though at the hearing of the case, evidence has been introduced to show Japan’s alleged aggressive design against the U. S. S. R., no such consideration seems to have weighed with that State in its decision in this respect. In my opinion, in the view of the law on the assumption of which we are now proceeding we must either accept the justification sought to be given in this document as a VALID EXCUSE for war in international law or declare the action taken to be unjustifiable and consequently aggressive and criminal. Of course, it might be contended that so far as the Pact of Paris is concerned, the war declared by the U, S. S. R. would not offend against its provisions. The U. S. S. R. might contend that it resorted to war as an instrument of international policy. Further, Japan having already violated this Pact, forfeited its benefit and consequently this war by the U. S. S. R. did not violate the Pact, being against a signatory who had been waging war in violation of the same. This plea would be available only if we say that the test whether or not a particular war is criminal is whether it is or is not in violation of the Pact.
So far as the act of the Netherlands is concerned it may be supportable as a measure of self-defense only if we do not accept the test of aggression suggested by Mr. Jackson. At the time when the Imperial Rescript declaring war on the United States and Great Britain was issued, no declaration of war was made against the Netherlands. The Prosecution contends that this was so only “in view of future strategic convenience”. According to the Prosecution “there was no doubt that on December 8, 1941, Japan entered into a war with the Netherlands. Recognizing this situation, the Netherlands declared that a state of war existed between the Netherlands and Japan”.
I need not proceed to examine this question further at this place. All that I need point out is that from the very fact that the prosecuting nations including these two nations made a common case, the test of aggression must be sought somewhere else. Otherwise the test suggested by the various authorities would lead to the result that the U. S. S. R. committed the crime of starting aggressive war against Japan: That it also committed the same crime by its war against Finland and consequently committed crime against humanity as well, may be left out of consideration in the present case. I am pointing this out here only to show where the suggested tests would lead us. As I cannot believe for a moment that the nations themselves having thus committed crimes would combine to prosecute the defeated nationals for the same crime, ignoring altogether similar criminals of their own nationalities, my conclusion is that the nations have not accepted any one of those tests of aggression that would produce this result.
It may be suggested, as has very often been done in course of this trial, that simply because there might be robbers untried and unpunished it would not follow that robbing is no crime and a robber placed under trial for robbery would gain nothing by showing that there are other robbers in the world who are going unpunished. This is certainly sound logic when we know for certain that robbery is a crime. When, however, we are still to determine whether or not a particular act in a particular community is or is not criminal, I believe it is a pertinent enquiry how the act in question stands in relation to the other members of the community and how the community looks upon the act when done by such other members.
Before we can decide which meaning should be attached to the words ‘aggressor’, 'aggression’ and 'aggressive’, we must decide which of the views as to a certain category of war having become criminal is being accepted by us. It is needless to say that we are now proceeding ON THE ASSUMPTION that a certain category of war is a crime under the international law.
We have already noticed that there are at least four different views as to how war becomes a crime in international life.
According to Lord Wright, war is a crime in so far as it cannot be justified: The only justification of war being that it is necessitated by self-defense or self-protection, it would follow that the term aggressive in this view should mean what is not justifiable on this ground. The Nuremberg Tribunal seems to have taken this view. In this connection it will be necessary for us to decide whether there need be any OBJECTIVE CONDITION as the basis of self-defense or whether mere SUBJECTIVE END would suffice. Even if we accept the position that an objective condition is essential for self-defense, the question would still remain; Who, under the international law, is to judge the existence or otherwise of such objective condition?
According to Dr. Glueck, neither the Pact of Paris nor any of the Covenants made any war a crime. But repeated pronouncements of popular conviction that aggressive war is a crime gave rise to a customary international law making war a crime in international life. In this view we must look to these pronouncements to find out the meaning of aggression.
Professor Kelson’s view seems to be that the distinction between just and unjust war has always been recognized. The Pact of Paris now definitely de-
fines what is unjust WELT: The war thus declared unjust will be a crime. This view is substantially the same as that of Lord Wright for our present purposes and will lead to the same meaning of the terms aggressor, aggressive, or aggression.
Mr. A. N. Trainin’s views are somewhat difficult of application in this respect. He defines international crimes as infringements on the basis of international association, and consequently the conception of crime in international life can come into existence only when peace is established as the basis of such association.
I have already shown that in the ultimate analysis, Mr. Trainin’s view comes to this that any infringement or attempted infringement of the status quo is crime. This seems to correspond to the view asserted by Mr. Jackson at the Nuremberg Trial.
The prosecution in the present case invites us to a fifth view, namely, that a war started with a certain procedural defect is a crime and consequently this procedural defect will amount to aggression.
I have already expressed my view that no war was made a crime in international life. In this view, of course, the present question of determining the aggressive character of war does not at all arise.
Assuming, however, that a certain category of war has been made a crime in international life, the only view that might be accepted is that of Lord Wright where the learned author says that a war which cannot be justified has become a crime as the consequence of the Pact of Paris. The position in international law in this respect, prior to the Pact of Paris, was lucidly given by Senator Borah in December 1927 and our consideration need not be pushed behind that declaration of the then state of law.
If we accept the above view of Lord Wright as to what category of war is now a crime, the test of aggression will be want of justification . Of course in order to be an aggressor, the state must be the first to commit the act of war. The temporal priority in my opinion is essential though not enough.
If we proceed on the assumption that there exists an international community organized on the basis of humanity, then, domination of one nation by another against the will of that nation will be the worst type of aggression, and, an action to assist such a dominated nation, which has thus been subjected to aggression, to free itself from such aggression, must also be accepted as justifiable. Mr. Jackson supports, as justifiable, an action to assist a STATE which has been subjected to aggression. I do not see why in an international community organized on the footing of humanity, similar action to assist a NATION subjected to aggressive act of domination should not be equally justifiable.
Self-defense is certainly such a justification. The prosecution in the present case concedes that the Kellogg-Briand Pact “did not interfere with the right of self-defense” and that under the Pact “each nation was to be the judge of that question”. Its contention, however, is that even with such wide scope left for self-defense it cannot be “raised as a defense at the will of the aggressor without regard to the fact”. “Whether action under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced." The prosecution relied on the Nuremberg judgment as also on the observations of Dr. Lauterpacht in his edition of Oppenheim’s International Law already noticed by me in an earlier part of this judgment. According to Prosecution submission, “self-defense can only apply in the case of a reasonably anticipated armed attack.”
I have already discussed the nature and scope of self-defense of States in international life, and have pointed out wherein it differs from individual right of private defense in a national system. I have also pointed out how the Kellogg-Briand Pact left this right altogether unaffected.
Even in course of the negotiations between Japan and the United States of America just on the eve of the present Pacific War, an action of legitimate self-defense was understood by the United States of America to mean “their own decision for themselves whether and when and where their interests were attacked or their security, threatened”. This self-defense was understood to extend to the placing of armed forces in any strategic military position keeping in view “the lightning speed of modern warfare” (Vide Exh. 2876).
I have already noticed how, before the ratification of the Pact of Paris by the United States, Mr. Kellogg, on the question of self-defense, declared that the right of self-defense was not limited to the defense of territory under the Sovereignty of the State concerned, and that, under the treaty, each State would have the prerogative of judging for itself WHAT ACTION the right of self-defense covered and WHEN IT CAME INTO PLAY, subject only to the risk that this judgment might not be endorsed by the rest of the world.
Mr. Logan in summing up the defense case invited us to hold that this right of self-defense extended to what may be characterized as economic blockade by other powers. Mr. Logan said: “The evolution of man, with his advancement in science, with the ever-increasing interdependence of nations upon each other for their sustenance introduces into the realm of warfare more than the explosion of gun-powder and the resultant killing of the enemy, but other, and, equally formidable, methods of reducing the resistance of an opposing nation and curbing it to the will of another . . . To deprive a nation of those necessary commodities which enable its citizens and subjects to exist is surely a method of warfare not dissimilar to the violent taking of lives through explosives and force because it reduces opposition by delayed action resulting in defeat just as surely as through other means of conventional hostilities. It can even be said to be of a more drastic nature than the blasting of life by physical force, for it aims at the slow depletion of the morale and well-being of the entire civilian population through the medium of slow starvation.” It cannot be denied that this would require a serious consideration.
In the colloquies between him and individual members of the Senate Committee on Foreign Relations, Mr. Kellogg explained that the right of self-defense extended even to economic blockade. The treaty, it was understood, did not impair or abridge the right of the United States to defend its territory, possessions, trade or interests. In its report, the Committee made inter alia the following pertinent statement: “The Committee reports the above treaty with the understanding that the right of self-defense is in no way curtailed or impaired by the terms or conditions of the treaty. Each nation is free at all times and regardless of the treaty provisions to defend itself, and is the sole judge of what constitutes the right of self-defense and the necessity and extent of the same." This is what the Committee understood to be “the true interpretation of the treaty.”
In my judgment, the nature and scope of self-defense and the occasion for its application should all be determined with reference to the law as it stood before the Pact. Of course it is also my view that the question remained UNJUSTICIABLE even after the Pact. I have already given my reasons for saying so. But here I am proceeding on the assumption that it was made justiciable to a certain degree by the Pact.
The Prosecution submitted that “it must be for the Tribunal to determine (a) whether the facts alleged raise a case of self-defense within the proper meaning of that term;
(b) whether the accused honestly believed in the existence of that state of affairs, or whether it was ... a mere pretext; and (c) whether there were any reasonable ground for such a belief."
According to the Prosecution “it is only if all three of these conditions are satisfied, that the right of each nation to judge for itself can operate.” But none of these conditions would be satisfied in the case of the war by the U. S. S. R. against Japan.
Perhaps at the present stage of the International Society the word “aggressors” is essentially ‘chameleonic’ and may only mean “the leaders of the losing party”.
It may only be suggested that for the purpose of determining this question of justifiability or otherwise of the war we should see:
1. Whether according to the information and bona fide belief of the invading state there existed any objective condition as the basis of the justification pleaded.
2. Whether the alleged objective condition as believed by the invading state was such as would justify a reasonable statesman in acting on it in the manner it was acted upon by the accused.
In determining the questions of 'bona fides' or otherwise or of “reasonableness”, the contemporaneous behaviour and opinion of similar statesmen of other countries including the victors would certainly be pertinent consideration. Such questions can hardly be decided in an intellectual quarantine area. When any determination of these questions is destined to determine the question of life or liberty of the accused, it is only fair that his conduct should be measured by a standard having universal application. In so doing we may not ignore any possible elusive connection between non-verbal behaviour and the words employed to describe or disguise it.
I would take the law relating to self-defense or self-protection to be substantially what it was, prior to the Pact of Paris, subject only to such modifications as might have been warranted by any changed circumstances of international life.
The International world seems to consider it legitimate for one state to pursue the policy of “supporting free peoples of other states who are resisting attempted subjugation by armed minorities of those states or by outside pressure." This may lead us to the consideration of the real character of the world’s ‘terror of Communism' and its bearing on the extent of legitimate interference with other states affairs. It is a notorious fact that the world's nightmare was Communism since the Bolsheviks had made themselves masters of Russia in 1917. The “catastrophe” which the existing states were contemplating in their “terror of communism” was perhaps not so much the obstructive impact of an external force but a spontaneous disintegration of society from within. But in their expression of this terror they always preferred to minimize or altogether ignore this internal disintegrating infirmity and emphasize the delusion of impact coming from without.
Ordinarily a state can have no right to interfere with the affairs of another state simply on the ground of any ideological development in that state. But COMMUNISM in China did not mean only a political doctrine held by certain members of existing parties, or the organization of a special party to compete for power with other political parties. IT BECAME AN ACTUAL RIVAL OF THE NATIONAL GOVERNMENT. It possessed its own law, army and government, and its own territorial sphere of action. Consequently, its development was, for all practical purposes, on a par with a foreign intrusion, and, it is certainly a pertinent question whether other states having interest in China would be entitled to come in and fight this development in order to protect their interest.
It may also be pertinent to notice here that Communism itself is not looked upon as a mere development of a different ideology. There is a grave fundamental difference between the COMMUNISTIC THEORY OF THE state and property and the existing democratic theory. In short, Communism means and attempts at “withering away of the state”. The traditional French and Anglo-American democracies may roughly be said to be based on Lockean, Humean, and Jevonian philosophy interspersed with Church of England or Roman Catholic, Aristotelian philosophical assumptions. The Russian Communism has for its basis the Marxian philosophy.
No doubt the words “democracy” and “freedom” are used also in connection with communistic ideal. But there, they are made to bear a fundamentally different import. The “democracy” of the communistic ideal means and implies the withering away of the present day “ democracy”. The possibility of Communistic ‘ freedom’ is seen only in the disappearance of the present day democratic state organizations.
Lenin says: “Only in Communistic Society, when the resistance of the capitalists has been completely broken, when the capitalists have disappeared, when there are no classes . (i. e., when every member of society spontaneously accepts the Marxian philosophy), only then does ‘ the state . . cease to exist’, and it ‘becomes possible to speak of freedom. ’ Only then will really complete democracy, democracy without any exceptions, be possible and be realized. And only then will democracy itself begin to wither away . . . Communism alone is capable of giving really complete democracy, and the more complete it is, the more quickly will it become unnecessary and wither away of itself."
Thus the attitude of the Communist with respect to a democracy grounded on the Lockean or Humean philosophy is definite.
In these circumstances it is generally felt that the Communistic development is not directed by a correct ideology and that therefore the Communists are not thoroughly safe neighbours for the rest of the world.
It is not for me to comment on the justification or otherwise of these feelings. Such feelings have not always been shared by the world’s wisest minds. While frankly condemning “the ruthless suppression of all contrary opinion, the wholesale regimentation, and the unnecessary violence in carrying out various policies” in Soviet Russia, some with equal frankness point out that “there was no lack of violence and suppression in the capitalist world”. “I realized more and more”, says Pandit Jawaharlal Nehru of India, “how the very basis and foundation of our acquisitive society and property was violence ... A measure of political liberty meant little indeed when the fear of starvation was always compelling the vast majority of people everywhere to submit to the will of the few . . . Violence was common in both places, but the violence of the capitalist order seemed inherent in it; while the violence of Russia, bad though it was, aimed at a new order based on peace and cooperation and real freedom for the masses.” Pandit Nehru then points out how, with all her blunders, Soviet Russia had triumphed over enormous difficulties and taken great strides toward this new order, and concludes by saying that the presence and example of the Soviets “was a bright and heartening phenomenon in the dark and dismal world.”
Such appraisals, however, do not help any solution of the difficulties which the present International Society, composed as it is of Capitalist democratic states as also of Communist states, feels in adjusting and stabilizing the relations between the two groups. Real o fancied, such difficulties were, and, still are, being felt almost universally.
Solution of such difficulties, however, is not what concerns me now. All that I need point out is that as the Communistic development thus goes to the very foundation of the existing state and property organizations, the following questions would naturally arise for our determination:
1. Whether a sister STATE of the existing international society would have right to help the distressed state when ITS existence is thus threatened by internal communistic development; if so, what is the extent of this right?
2. Whether a sister STATE having interests within the distressed state would have right to protect that interest from the dangers of communistic revolution. If so, what is the extent of this right?
3. Remembering the ideology of Communism and keeping in view the fact that some of the states of international society have already assumed communistic organizations, what, if any, is the extent of the rights of interference of other existing sister states if and when they bona fide apprehend the spread of this communistic development in other states.
The present-day world behaviour in the matter of helping one group of peoples of a particular nation in fighting another group of the same on the plea that that other group are communists would throw much light on the solution of these questions.
Some of the victor states, we are told, “have always felt .... that they cannot prosper and live securely in contact with states where governments work on principles radically different from their own." It is to be seen whether the defeated nations also are entitled to share such feelings and shape their policy and behaviour accordingly. We are told that “no nation can endure in a politically alien and morally hostile environment”, and are given “the profound and abiding truth” that “a people which does not advance its faith has already begun to abandon it." It may only be noticed here that even the width of the Pacific or of the Atlantic may not he considered sufficient to prevent ‘contact’ in this respect.
These behaviours will indeed be very material for our present purpose. If an individual life or liberty is to be taken, it would certainly be proper that this conduct should be measured by a standard having universal application.
The bearing of Chinese boycott on the present question will be considered while dealing with the Chinese phase of the case. It may not be possible for us to ignore these boycott movements altogether when called upon to determine whether the action taken by Japan in this connection was or was not aggressive.
There is yet another difficult matter that must enter into our consideration in this connection. We must not overlook the system of Power Politics prevailing in international life. It will be a pertinent question whether or not self-defense or self-protection would include MAINTENANCE of a nation’s position in the system. The accused in the present case claim such defensive character also for their action in the Pacific.
As, in my opinion, the Pact of Paris left the parties themselves to be the judge of the condition of self-defense, I would only insist upon there having been bona fide belief in the existence of some sufficient objective condition.
In order to appreciate what may be sufficient objective condition we must look to the behaviour of the international community itself. As we shall see later, powerful nations seem to have shaped their behaviour on the footing “that protracted impotence of a state to maintain within its domain stable conditions in relation to alien life and property both inspires and justifies the endeavour of an aggrieved neighbour to enter the land and possess itself thereof." The Lytton Report seems to justify such actions even on the part of nonneighbours. The international society is supposed to look upon its individual member as fatally delinquent if it be persistently negligent of certain standards of conduct believed to be established by international law in relation to occurrences within the territory which it regards as its own. In the event of such delinquency, it is said, “the delinquent member must be regarded as inviting conquest or an external attempt to subject it to wardship.” “Such grim alternatives do not necessarily point to lawlessness on the part of countries which avail themselves, possibly for selfish reasons, of the failures of the palsied state. They merely accentuate the fact that respect for the territorial integrity of a state invariably demands of the sovereign an assertion of a supremacy within its domain which is responsive to all that international law demands.” I am not supporting this justification of conquest. I am simply pointing out that this has not been a mere theory but has been a PRINCIPLE OF ACTION at least in respect of areas outside the western hemisphere.
There is yet another matter which would require our consideration in this connection—I mean the question of neutrality and of the extent of neutral ’ s rights and duties. This question would have a very important bearing here in view of the fact that in the counts distinct charges of planning, initiating and waging aggressive wars have been laid in respect of Japan’s action against different nations at different dates. After, for example, Japan’s war in violation of the Pact of Paris was initiated against China, the behaviour of other nations towards her would be a pertinent consideration in order to determine the character of any subsequent action of Japan against those nations. It would, therefore, be essential to enquire
1. Whether, even after the China Incident, those other nations owed any duty to remain neutral;
2. Whether their behaviour including their hostile comments, if any, upon the action of belligerent Japan was within the right and consistent with the duty of a neutral;
3. If not, whether Japan’s action against such nation was justifiable in view of such behaviour.
Apart from any other matter, the question how far a neutral has the right to make hostile comment upon the actions of a belligerent is decidedly a grave one, remembering that today, besides the power of the press, the radio carries the spoken word to all corners of the earth in a moment. The effect of a nation’s broadcasting may alone do more harm to a combatant than the destruction of any army corps; so that if a combatant feels that the broadcasting and the press utterances of a nation which owed the duty of remaining neutral are sufficiently damaging to him, he may be within his right to demand discontinuance of such utterances or fight.
In the explanatory note which Kellogg dispatched to the powers on June 23, 1928, he declared that he did not share the scruples of France that adhesion of France to the Pact could prevent her from fulfilling her obligations towards the states whose neutrality she had guaranteed. According to this note a supersession of neutrality was not regarded as the consequence of the Pact.
“Neutrality legislation which has been enacted in the U. S. A. from time to time since the Pact of Paris, seems to indicate that both Congress and the President believe that the U. S. A., though a signatory of the Briand-Kellogg Pact, can also remain neutral. American neutrality legislation is the result of a lively difference of opinion. On the one hand, it was claimed that the United States ought to draw, from the notion that neutrality is no longer compatible with the new international law, the logical conclusion that the exportation of arms, munitions and war materials to the aggressor should be forbidden. In February 1929, Senator Capper brought in a resolution to forbid the exportation of arms and munitions to any country which the President declared had violated the Kellogg Pact. The resolution was rejected.” This is taken from Dr. Scheuner’s report placed before the Amsterdam Conference of 1938 already referred to. It throws a good deal of light on the question now raised. Incidentally this seems also to indicate that at least this powerful state did not consider war in violation of the Pact an illegal thing. In any other view such a strong power would have to be taken to be so unscrupulous in its international behaviour as to openly help the doing of an illegal thing. The prospect of profits from the sale of arms alone could not have been responsible for such a behaviour in such a big power.
Many well-known authors are also of opinion that the traditional law of neutrality has lost none of its validity as a result of the Pact.
Judge J. B. Moore writing in 1933 says: “As a lifelong student and administrator of international law, I do not hesitate to declare the supposition that neutrality is a thing of the past is unsound in theory and false in fact. There is not in the world today a single government that is acting upon such supposition. Governments are acting upon the contrary supposition, and in so doing are merely recognizing the actual fact.”
On February 27, 1933, Sir John Simon, discussing in the House of Commons the embargo on the shipment of arms to China and Japan, spoke of Great Britain as a “neutral government” and of the consequent necessity of applying the embargo to China and Japan alike.
Of course the law of neutrality does not preclude any government from taking part in a war if it sees fit to do so. “It merely requires the observance of candor and decency in international dealings, by inhibiting acts of war under the guise of neutrality." From the elementary principles of international law it necessarily follows that if a government bans the shipment of arms and munitions of war to one of the parties to an armed conflict and permits it to the other, it intervenes in a conflict in a military sense and makes itself a party to a war, whether declared or undeclared.
The fact that America was helping China in all possible ways during Sino-Japanese hostilities would thus be a pertinent consideration in determining the character of Japan1 s subsequent action against the U. S. A. The prosecution admits that the United States “rendered aid economically and in the form of war materials to China to a degree unprecedented between non-belligerent powers and that some of her nationals fought with the Chinese against the aggression of Japan”.
In this connection we may have to consider the bearing of boycott of a belligerent state by the so-called neutral states or of economic sanction against such a state.
I have discussed elsewhere the question of legality or otherwise of boycott in international relations. The really parallel situation in international life arises when two or more countries combine to cut off all commercial intercourse with another that may be singled out for penalization. It may be that this uniting or combining of two or more states transforms conduct to which a single country might legitimately have recourse, into conduct which at once attains a sinister aspect, and of which the proscribed country may justly complain.
As has been observed by Charles Cheney Hyde and Luis B. Wehle:
“It is greatly to be doubted whether a group of countries enjoys a broader right to restrict or penalize a particular state (except, of course, in consequence of some general arrangement to which it is a party) than does the individual member of the group. The sheer POWER of the matter to achieve its end is not indicative of a special LEGAL RIGHT to do so. Yet the very success of some instances of joint intervention may tend to encourage the notion that the pressure brought to bear upon a country whose conduct is offensive to a group gains sanctity from the united power that is welded together against it. If a weapon such as the international boycott be applied to check the conduct of a member of the family of nations, THE REASONABLENESS OR FAIRNESS OF THE MEASURE depends not upon the power behind it or upon its success, but upon quite a different consideration—the nature of the conduct of the state that is interfered with.
“States may be expected to intervene, and to assert the right to do so, even collectively, to thwart the conduct of a particular country that is internationally illegal, when they smart enough from the consequences of it. What justifies their action is the ESSENTIAL WRONGFULNESS of the conduct that is repressed. This principle is obviously applicable when the boycott, rather than any other, happens to be the instrument of interference. Yet the very potency of that instrument accentuates the care to be taken lest it minister to caprice or revenge, rather than to the demands of justice.”
Certain safeguards are suggested in this respect:
1. The scheme of organized intervention exemplified by the international boycott ought not to be put into force save as a deterrent of, or as a penalty for, the commission of a well-defined act, the existence of which is ascertainable as a fact;
2. It should not be applied without giving the state charged with the commission of the act, an opportunity for a hearing before an impartial body;
3. It should be directed solely against a state which has previously agreed, as a member of a group participating in a multipartite agreement, to the use of the weapon under specified contingencies for the common weal.
I would briefly notice the explanations offered on these suggested safeguards by Messrs Charles Cheney Hyde and Luis B. Wehle:
1. It is of utmost importance that the proscribed conduct be of unequivocal character: it must not be a complicated superstructure calling for a conclusion on a question of law as a means of determining its existence: it must be a simple factual situation easily recognizable as such and not likely to be misapprehended. The distinction between these tests of requisite improper conduct is seen in the difference between a so-called WAR OF AGGRESSION and a mere ACT OF HOSTILITY. To apply a penalty for the former necessitates an enquiry into a complex situation not unmixed with law, and a conclusion which in numerous cases may well be open to doubt;
2. The opportunity for a hearing before an impartial body is essential because the strength and virility of the international society is proportioned to its respect for law: The foundation of international justice is likely to be lost sight of and even held in contempt when the sheer power of a group of countries is launched against a single state by a summary process that gives it no opportunity for defense;
3. The reason for the limitation that boycott be confined for use against a state that has previously agreed to that use under specified circumstances, ought to be obvious. The boycotters need assurance that they may stay at peace and penalize the covenantbreaking belligerent, and at the same time be not charged with violating a legal duty towards it because of their taking sides and a- bandoning every pretence of neutrality. When war breaks out in any quarter, the law of nations imposes heavy burdens upon the country that professes to stay with peace with the fighting powers. It forbids its government to help either belligerent at the expense of the other. That law takes no cognizance of the efforts or desires of the country that seeks to participate in the contest and yet remain at peace: IF IT WILL PARTICIPATE AS SUPPORTER OF A FAVOURED BELLIGERENT, INTERNATIONAL LAW DEGREES THAT IT DOES SO SQUARELY AS A BELLIGERENT, AND NOT AS A NEUTRAL. In a word, governmental participation by a state supposedly at peace is not only not contemplated, but is also sharply proscribed. Upon the outbreak of war these requirements immediately become operative. The point to be emphasized is that they are not modified or lessened by a general arrangement designed to minimize occasions for a just and excusable war, and which do not in terms purport to alter them.
The mere embarking upon war in violation of the terms of a multipartite treaty hardly suffices in itself to deprive the treaty-breaking belligerent of the right to demand that the other parties to the arrangement which elect to remain at peace, respect their normal obligations as neutrals. Thus, if two or three of them unite to apply the boycott against the offender, and even succeed in checking its further belligerent activities, they still subject themselves to the charge of unneutral conduct.
THE EMPLOYMENT OF A BOYCOTT AGAINST A COUNTRY ENGAGED IN WAR AMOUNTS TO A DIRECT PARTICIPATION IN THE CONFLICT, which may, in fact, prove to be as decisive of the result as if the boycotters were themselves belligerents. It is defiant of the theory of neutrality and of the fundamental obligations that the law of nations still imposes upon non-belligerent Powers.
The economic measures taken by America against Japan as also the factum of ABCD encirclement scheme will thus have important bearings on the question of determining the character of any subsequent action by Japan against any of these countries. Of course, whether or not, any such encirclement scheme, military or economic, did exist in reality is a question of fact to be determined on the evidence adduced in the case.
The prosecution characterized the economic blockade against Japan as aiming only at the diminution of military supplies. According to the defense “the blockade affected all types of civilian goods and trade, even food”. The defense says: “This was more than the old fashioned encirclement of a nation by ships of overwhelming superiority and refusing to allow commerce to enter or leave. It was the act of all powerful and greatly superior economic states against a confessedly dependent island nation whose existence and economics were predicated upon world commercial relations.” I shall revert to this matter while considering the phase of the case relating to the attack on Pearl Harbour.
I believe I have said enough to indicate that in deciding whether or not any particular action of Japan was aggressive we shall have to take into account the antecedent behaviour of the other nation concerned including its activity in adverse propaganda and the so-called economic sanction and the like.
Before leaving this topic I would like once again to recall to our memory that in international life even after the Pact of Paris certain compulsive measures short of war are deemed legitimate. We shall be failing in our duty if we lose sight of this fact in our approach to the evidence adduced in this case. If any evidence has been adduced which unequivocally speaks of the intention to wage war, there will not be any difficulty in this respect. If, however, the evidence, so far as it goes, by itself, does not go far enough in this direction and we are invited to attach some retrospectant indication to the subsequent war in appraising the significance of any prior incident or agreement, we must keep in view the possibility of this legitimate mental state at such prior stage.
The indictment in the present case characterizes the following as illegal wars:
1. A war to secure the military, naval, political and economic domination of certain countries and of the Pacific and Indian Oceans.
2. A war in violation of:
( d) International Law.
The prosecution case is that a war in violation of treaties, agreements, assurances or international law is illegal and hence those who planned or waged such a war committed a crime thereby.
A war in violation of treaties, agreements or assurances without anything more may only mean a breach of contract. In my opinion such a breach would not amount to any crime. The treaties, agreements or assurances do not change the legal character of the war itself.
The treaties and the agreements in question are detailed in Appendix B of the Indictment and the Assurances are given in Appendix C.
Appendix B names the following Treaties and Agreements:
1. The Convention for the Pacific Settlement of International Disputes, signed at the Hague, 29 July 1899.
2. The Convention for the Pacific Settlement of International Disputes, signed at the Hague, 18 October 1907.
3. The Hague Convention No. Ill relative to the Opening of Hostilities, signed 18 October 1907.
4. Agreement effected by exchange of notes between the United States and Japan, signed 30 November 1908.
5. The Convention and Final Protocol for the suppression of the abuse of opium and other drugs, signed at the Hague, 23 January 1912 and 9 July 1913.
6. The Treaty of Peace between the Allied and Associated Powers and Germany, signed at Versailles, 28 June 1919, known as the Versailles Treaty.
7. The Mandate from the League of Nations pursuant to the Versailles Treaty made at Geneva, 17 December 1920.
8. Treaty between the British Commonwealth of Nations, France, Japan and the United States of America relating to their Insular possessions and Insular Dominions in the Pacific Ocean, 13 December 1921.
9. Identic communication made to the Netherlands Government on 4 February 1922 on behalf of the British Commonwealth of Nations and also “mutatis mutandis” on behalf of Japan and the other Powers Signatory to the Quadruple Pacific Treaty of 13 December 1921.
Identic Communication made to the Portuguese Government on 6 February 1922 on behalf of the British Commonwealth of Nations and also “mutatis mutandis” on behalf of Japan and the other Powers signatory to the Quadruple Pacific Treaty of 13 December 1921.
10. The Nine-Power Treaty of Washington, of 8 February 1922.
11. The Treaty between the United States and Japan signed at Washington, 11 February 1922.
12. The League of Nations Second Opium Conference Convention, signed at Geneva, 19 February 1925.
13. The Kellogg-Briand Pact—27 August 1928.
14. The Convention relating to Narcotic Drugs, signed at Geneva, 13 July 1931.
15. Treaty between Thailand and Japan concerning the continuance of friendly relations etc., signed at Tokyo, 12 June 1940.
16. Convention respecting the Rights and Duties of Neutral Powers etc., signed at the Hague, 18 October 1907.
17. Treaty of Portsmouth between Russia and Japan, signed 5 September 1905.
18. The Convention on Embodying Basic Rules of the Relations between Japan and the U. S. S. R. signed 20 January 1925 in Peking.
19. The Neutrality Pact between the Union of Soviet Socialist Republics and Japan, signed 13 April 1941 in Moscow.
Of these treaties and agreements, items 1 and 2, The Hague Convention of 1899 and 1907 for the Pacific Settlement of International disputes 3 (The Hague Convention No. Ill relative to the opening of hostilities) and 13 (The Kellogg-Briand Pact of 1928) alone seem to have any direct bearing on the question of the legal or illegal character of the war. The effect of items 1, 2 and 13 has already been considered in detail. I shall presently take up the examination of the Hague Convention No. III.
Of the rest of these treaties and agreements, items 4, 8, 9, 10, 11, 15, 17, 18, and 19 are bilateral treaties giving rise to certain rights and duties as between the parties thereto. They, by their terms, did not prohibit any war. When the indictment speaks of ‘ a war in violation of’ such treaties and agreements, it seems to have either of the two following things in view:
1. War having the effect of injuriously affecting the legal relations constituted by these treaties and agreements.
2. War designed as a means for the procuration of the cessation of the legal relations constituted as above.
In my opinion, a war, if not otherwise criminal, would not be so, only because it involves any violation of the rights and duties arising out of legal relations constituted by such bilateral treaties and agreements. Any breach of such treaties and agreements, though brought about by war, would only give the other party a right to protest, to resist and to maintain its rights even by having recourse to war. In any case a war involving such a breach does not, in international law, bring in any individual responsibility or criminality.
The second item specified above however will have an important bearing on the charges of conspiracies in this case. I would take it up while considering such charges.
Item 6 is the treaty of Versailles and item 7 relates to that treaty. The relevant provisions of this treaty have already been considered at some length in an earlier part of this judgment. Item 16 relates to the question of neutrality . I have already considered the bearing and the rights and duties of neutrality on the question before us.
Items 5, 12, and 14 refer to treaties and agreements relating to the use of opium and other drugs. I do not see any bearing of these treaties on the question before us now. There is no evidence before us that any of the wars in question was for the purpose of violating any of these treaties. If these were violated during war in occupied territories, such violations might amount to war crimes stricto sensu. But I do not see how such facts would go to affect the character of the war itself.
I shall have occasion to come back to some of these treaties, agreements and assurances later on.
As regards war in violation of international law, the question falls to be considered in relation to:
1. Law renouncing war.
2. Law making aggressive war criminal.
3. Law regarding the opening of hostilities.
Cases 1 and 2 have already been considered while disposing of the material questions of law arising in this case.
The third case falls to be considered under two different heads, namely, (l) In relation to law, if any, dehors the Third Hague Convention of 1907 regarding the opening of hostilities and (2) In relation to the Third Hague Convention of 1907.
In the Seventh Edition of Wheaton’s International Law, Dr. B. Keith discusses the history and the principle of declaration of war and concludes that non-declaration does not make the war illegal. Dr . Keith points out that a formal declaration of war to the enemy was once considered necessary to legalize hostilities between nations. It was uniformly practised by the ancient Romans, and by the states of modern Europe until about the middle of the Seventeenth Century. In the Seventeenth Century formal declarations were not regarded essential. From the Eighteenth Century previous notifications became exceptional. Out of some one hundred twenty wars that took place between 1700 and 1872 there were barely ten cases in which a formal declaration preceded hostilities. In the latter part of the Nineteenth Century, however, it became customary to publish a manifesto, within the territory of the state declaring war, announcing the existence of hostilities and the motives for commencing them. This publication perhaps was considered necessary for the instruction and direction of the subjects of the belligerent state in respect to their intercourse with the enemy, and regarding certain effects which the law of nations attributes to war in form. Dr. Keith also points out that apart from the conclusions to be drawn from actual practice, there was by no means unanimity of opinion among jurists and publicists. On the whole, continental writers urged the necessity of a previous declaration. The British view was contrary to this. According to Lord Stowell a war might properly exist without a prior notification—the notification only constituted the formal evidence of a fact.
Dr. Keith then cites examples from the period between 1870 and 1904 to show that in some cases there were formal declarations while in others there were none. Among the latter group were the hostilities of 1884-1885 between France and China, the Serbian invasion of Bulgaria of 1885, the Sino- Japanese War of 1894, the Greek invasion of Turkey of 1897, and the allied action against China on June 17, 1900. In the Russo-Japanese War, 1904, Japan attacked the Russian Fleets two days before she formally proclaimed war. Russia thereupon accused the Japanese of treacherous conduct. Dr. Keith says that as there had been no surprise attack, the charge was hardly maintainable. Diplomatic relations between the two powers had been going on fruitlessly since the preceding July, and were severed on February 6, by the Japanese note declaring that “The Imperial Government of Japan reserve to themselves the right to take such independent action as they may deem best to consolidate and defend their menaced position, as well as to protect their established rights and legitimate interests.’ A few hours before the delivery of this note however, the Japanese captured a Russian cruiser, as the Russian Fleet appeared on February 4 between Port Arthur and the Japanese Coast.
As has been pointed out above, though a practice developed to issue a general manifesto, this practice was uncertain and was only a matter of courtesy rather than of legal obligation. Dr. Keith says that because of this unsatisfactory state of the matter, the Hague Conference of 1907 took up the question, and laid down definite rules in its third convention, which is now binding on the belligerents.
The Convention in question is entitled “Convention Relative to the Opening of Hostilities” and comprises eight articles, of which Articles 1, 2, 3, and 7 are relevant for our present purpose.
Article 1 stands thus: “The contracting powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.”
Article 2 requires that the existence of a state of war must be notified to the neutral powers without delay ....
Article 3 says that Article 1 shall take effect in case of war between two or more of the contracting powers.
Article 7 enables any of the contracting parties to denounce the present convention and lays down how such denunciation is to be made.
A careful reading of the articles will show that the Convention only created contractual obligation and did not introduce any new rule of law in the international system. Westlake thinks that this convention did not seriously affect the previous law on the subject. According to Pitt-Cobbett “The signatories do not pledge themselves absolutely to refrain from hostilities without a prior declaration, but merely recognize that as between the belligerents hostilities ought not to commence without previous unequivocal warning”. Bellot considers that despite the limits imposed by custom and convention the opening of hostilities appears to be mainly a question of strategy.
Dr. Keith also concludes that the rule introduced by the Convention in no degree stigmatizes a war without declaration as illegal. It would appear from the rules that it is not necessary to allow any definite interval to elapse between the declaration and the actual opening of hostile operation. A delay of twenty-four hours was suggested at the Conference, but it was not approved and no period was mentioned as requisite interval: vide Exhibit No. 2315, Report to the Conference from the Second Commission on Opening of Hostilities. For the present war an ultimatum was presented by Britain to Germany on September 2 at 9 A. M. to expire at 11 A. M. France delivered a
similar ultimatum which expired at 5 P. M. on the same date. Russia attacked Finland in 1939 without formal notice. Dehors this convention there was no law rendering war without declaration illegal.
I would further consider the question in connection with the murder charges in the indictment.
In my judgment a war in violation of treaties, agreements, and assurances or in violation of the conventions regarding the opening of hostilities did not become a crime in international law without something more, and the persons, if any, who planned, initiated or waged such a war did not commit any crime thereby.
The prosecution case, however, goes further than that of mere violation of treaties, agreements, assurances and conventions regarding the opening of hostilities. It charges the accused with treachery in this respect. The charge is not merely that these wars were planned and initiated in violation of such treaties, conventions etc. but that the whole design was that the planned war was to be in violation of such treaties etc., and was to be initiated in violation of such conventions etc., and further that the other party concerned WAS TO BE misled to think otherwise . According to the prosecution, it was an integral part of the plan or design that the existence of a design to wage war against the other party concerned should be kept concealed from that other party intending by such concealment to facilitate the initiating and waging of such war.
The question involves a question of fact, namely, whether there was any such treachery. I would discuss this matter more in detail in connection with the surprise attack on Pearl Harbour. The prosecution characterizes this attack as a treacherous one and claims it to be symbolic of the whole program of fraud, guile and duplicity. I would consider the evidence on this point later while discussing this attack. In the meantime it would suffice to say that a treacherous initiation of war is very different from an initiation of war without notice or declaration and in my opinion there can be no doubt that such a treachery, if any, would make the initiation a delinquency. It must however be pointed out that I do not accept the prosecution contention that “the quality of treachery rests in the minds of those making the attack and cannot be cured by the fact that it is found out." We are not much concerned with the mental delinquency of treachery but with the initiation of war being treacherous and for this purpose it is of vital importance whether the treacherous design could be kept concealed from the other party and whether the other party was really deceived by this design. Of course, if the mere formation of a treacherous design be a crime then the knowledge of the other party might not have any material bearing on the question. As I would discuss later, in my opinion, mere design of this character is not a crime in international life.
Referring to this defense of ‘knowledge’the Prosecution in another place of its summation characterizes it as ‘a curious one’and says: “It certainly cannot be the contention of counsel for the defense that such knowledge on the part of the intended victims is a valid defense against the charges of aggressive warfare, murder and the conspiracies to commit these crimes. It certainly has never been in any civilized jurisdiction since ancient days a defense to a charge of murder that the victim knew he was being killed. The knowledge or lack of knowledge of the intended crime on the part of the victim has never been a defense anywhere in cases of assault, battery, maiming, rape, robbery or burglary. It cannot, therefore, be a defense to the crime of aggressive warfare. . ."
In fairness to the defense counsel, it must be said that the defense of “knowledge on the part of the intended victims” was not at all directed to any of the matters referred to by the Prosecution. This defense was taken only to the charge of treachery so far as such treachery goes to determine the character of the act complained of. If the act is criminal apart from its being treacherous, the defense counsel never wanted to say that its character would in any way be changed by the knowledge of the intended victim.
A war to secure domination of certain territories as alleged in the indictment would perhaps constitute a breach of the Pact of Paris, if such a measure cannot be justified by the party adopting it on the grounds indicated above. But I have already given my view of the Pact. So far as the question of criminal liability, either of the state or of the state agents, is concerned, I have already given my conclusion in the negative.
I would only like to observe once again that the so-called Western interests in the Eastern Hemisphere were mostly founded on the past success of these western people in “ transmuting military violence into commercial profit”. The inequity, of course, was of their fathers who had had recourse to the sword for this purpose. But perhaps it is right to say that “the man of violence cannot both genuinely repent of his violence and permanently profit by it."
RULES OF EVIDENCE AND PROCEDURE
The view of law that I have taken makes it somewhat unnecessary for me to enter into the evidence in the case in respect of the counts other than those relating to war crimes stricto sensu. But as I have heard the entire case and have formed my own opinion of the facts as well, on the evidence brought on the record, I would prefer briefly to indicate my conclusions in respect of some of them.
While proceeding to weigh the evidence I would like to say a word about the apparent infirmity attaching to the major portion of the same.
In prescribing the rules of evidence for this trial THE CHARTER PRACTICALLY DISCARDED ALL THE PROCEDURAL RULES devised by the various national systems of law, based on litigious experience and tradition, to guard a tribunal against erroneous persuasion, and thus left us, in the matter of proof, to guide ourselves independently of any artificial rules of procedure.
The relevant provisions of the Charter are to be found in article 13 clauses (a),(6),(c), and (d) and article 15 clause ( d ). These provisions stand thus:
Article 13. Evidence.
(a) Admissibility . The Tribunal shall not be hound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value. All purported admissions or statements of the accused are admissible.
(b) Relevance. The Tribunal may require to be informed of the nature of any evidence before it is offered in order to rule upon the relevance.
(c) Specific evidence admissible. In particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted:
(l ) A document, regardless of its security classification and without proof of its issuance or signature, which appears to the Tribunal to have been signed or issued by any officer, department, agency or member of the armed forces of any government.
( 2 ) A report which appears to the Tribunal to have been signed or issued by the International Red Cross or a member thereof, or by a doctor of medicine or any medical service personnel, or by an investigator or intelligence officer, or by any other person who appears to the Tribunal to have personal knowledge of the matters contained in the report.
(3) An affidavit, deposition or other signed statement.
(4) A diary, letter or other document, including sworn or unsworn statements which appear to the Tribunal to contain information relating to the charge.
(5) A copy of the document or other secondary evidence of its contents, if the original is not immediately available.
(d) Judicial Notice. The Tribunal shall neither require proof of facts of common knowledge, nor of the authenticity of official government documents and reports of any nation nor of the proceedings, records, and findings of military or other agencies of any of the United Nations.
Article 15. Course of Trial Proceedings. The proceedings at the Trial will take the following course:
( d ) The prosecution and defense may offer evidence and the admissibility of the same shall be determined by the Tribunal.
Following these provisions of the Charter we admitted much material which normally would have been discarded as HEARSAY EVIDENCE.
While speaking of the hearsay rule we must keep in view the distinction between the rule requiring an extra-judicial speaker to be called to the stand to testify, and that requiring one who is already on the stand to speak only of his personal knowledge. The mark of the witness is knowledge—acquaintance with the facts in issue, and knowledge resting on his own observation. His distinctive function is to speak de visu suo et audito.
At present I am thinking of that branch of the rule according to which when a specific person, not as yet in court, is reported to have made assertion about a fact, that person must be called to the stand, or his assertion will not be taken as evidence. Such an assertion is not to be credited or received as evidence however much the asserter may know, unless he is called and deposes on the stand. WE DID NOT OBSERVE THIS RULE.
The exclusion of this category of hearsay evidence is not grounded upon its intrinsic lack of probative value. It is ordinarily excluded because the possible infirmities with respect to the observation, memory, narration and veracity of him who utters the offered words remain untested when the deponent is not subjected to cross-examination. These might be so far exposed by cross- examination as to enable the judge fairly to evaluate the utterance.
THE MAJOR PART OF THE EVIDENCE given in this case consists of HEARSAY OF THIS CATEGORY. These are statements taken from persons not produced before us for cross-examination. Much caution will be needed in weighing this evidence.
There is one piece of evidence on the record which strictly speaking comes under this category, but is supposed to be covered by some recognized exceptions to the rule. I mean the extracts from KIDO’S DIARY.
THE EXCLUSIONARY RULES OF EVIDENCE and the procedure for enforcing them are not always designed to be automatic eliminators of untrustworthy testimony. In the main they rather provide a privilege of protection against such testimony to the party against whom it is offered. When the extra-judicial declarations of another are offered against him, he is entitled to the benefits of the ordinary safeguards against hearsay, unless some doctrine of vicarious responsibility intervenes.
When such statements are received, their reception is justified not so much on any ground of representation but because of the existence of some independent guarantee of trustworthiness. No magic covering hides their hearsay infirmity unless they come clothed with some GUARANTEE OF TRUSTWORTHINESS.
An almost hopeless confusion beclouds THE RULES DEALING WITH DECLARATIONS OF CO-CONSPIRATORS. The orthodox rule makes one conspirator responsible for the acts of his co-conspirators done in furtherance of the conspiracy during its existence.
To that extent each conspirator is the agent of all others. and this applies to verbal as well as non-verbal acts—to assertive as well as to non-assertive statements. Where the assertive statement is made after the termination of the conspiracy, few systems find any difficulty in excluding it as against the coconspirators. The fact that the conspiracy is over makes it manifest that the narrative could have no tendency to further it or accomplish its object. Communications between conspirators, which are always admissible to show the terms and circumstances of the plot, are usually received without limitation. In theory a narrative by one to another, even though for the express purpose of encouraging the latter or inciting him to action for the accomplishment of the common design, ought not to be received against the latter for its truth unless he adopts it.
In order to be competent as evidence the declaration must have been made in furtherance of the prosecution of the common object, or must constitute a part of the res gestae of some act done for the accomplishment of the object of the conspirators, otherwise such a statement should not be competent evidence against the others. WE MUST AVOID CONFUSING THE TIME AND CONTENT OF THE UTTERANCE WITH ITS EFFECT AND PURPOSE. In numerous instances it would perhaps be clear that the words could not possibly have been uttered to further the common design. The conspirator perhaps was indulging in idle or ill-advised talk which constituted the worst method imaginable for reaching the conspiracy.
The rule seems to be that an admission of one conspirator, if made during the life of the conspiracy, is admissible against a joint conspirator, when it relevantly relates to and is in FURTHERANCE of the conspiracy. In some cases it has been said that in construing the expression “in furtherance of the conspiracy” reference is not to the admission as such, but rather to the act concerning which the admission is made. This however seems to be injecting new content into old formula and may amount to adding a new penalty to conspiracy.
The rule most favourable for admitting in evidence the things said or done by a co-conspirator seems to require the following:
1. The existence of a conspiracy must first be established by prima facie evidence before the acts and declarations of one of the alleged co-conspirators can be used against the others.
2. The connection of the alleged conspirators with the conspiracy must be established prima facie.
3. What is offered in evidence must be something said, done or written by any one of such persons.
(a) In reference to their common intention.
( b ) After the time when such intention was first entertained by any one of them.
4. Matters referred to above will be evidence.
(a) For the purpose of proving the existence of the conspiracy itself.
( b) For the purpose of showing that any such person was a party to it.
The ultimate principle underlying all these rules is to secure some guarantee of trustworthiness of the statement. In dealing with the several extracts from KIDO’s diary we must not lose sight of this safeguarding principle.
Perhaps there would be nothing inherently untrustworthy in its entries when a diary only purports to keep records of isolated daily occurrences observed by its author. When, however, the author proceeds to record the whole course either of a life or any event, there may come in some unconscious influence of his own creation which may greatly affect the record detracting from its initial trustworthiness. Life’s course is always shrouded in mystery. In it there are always numerous self-contradictions and self-conflict —there are always irreconcilable pasts and presents. But a human creator’s pen generally seeks to follow a defined course, settling and reconciling all conflicts and contradictions. From that moment, instead of the diary following the course of events, the events are unconsciously made to follow the diary. The possibility of such a distorting influence becomes greater when the author of the diary, instead of being a disinterested observer, is himself a chief participant in the entire event.
If this is so with any ordinary event or life, such possibility is specially graver when it is the political event or political life which forms the subject of the record.
But even then we may not discard a diary as wholly untrustworthy. There may still be some circumstantial guarantee of trustworthiness. As has been pointed out by Wigmore, the circumstances may be such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed. Or, even though a desire to falsify might present itself, considerations such as the danger of easy detection would probably counteract its force. Or, the entry was made under such conditions of publicity that an error, if any, would have been detected and corrected.
Whatever be the position of KIDO’ s Diary, none of these guarantees, however, can be held out in support of another such document which was introduced by the prosecution at a very late stage of the trial. The prosecution named it as the “Saionji-Harada Memoir”.
Numerous extracts from this document were introduced in evidence in this case at that late stage. This meant introduction into the case of hearsay of both the categories specified above, or perhaps something worse than that.
The document is voluminous. It will serve no useful purpose to scrutinize its entire contents. It has not, in its entirety, been introduced in evidence. But even a cursory glance through its contents will render it difficult for us to credit it with the requisite guarantee of circumstantial trustworthiness so as to entitle us to make an exception in its favour to the rule against hearsay evidence.
I took Part XIII of this ‘memoir’ at random. This part comprises two volumes; one volume is from page 1837 to 1907, and the other, from page 1908 to 1979. The first volume contains chapters 246 to 252 being entries of 27 July 1937 to 30 October 1937 and the other volume comprises chapters 253 to 258 being entries of 25 October 1937 to 18 th of December 1937. The first of the above chapters purports to have been recorded on the 27th July 1937 and it purports to record the events that happened from the 19th to 26th. The next chapter on the face of it was recorded on the 4th August 1937 and it purports to record events of the 25th July to 3rd August. The next chapter bears the date of 12th August 1937 and purports to record events that took place on the morning of the 4th within the knowledge of the author of the diary. Chapter 250A and 25OB are both dated 9th October 1937 while the preceding chapter 249 is dated 20th of August 1937. This chapter 249 seems to give us events from the 13th to 20th. The first entry in this chapter mentions the recorder meeting the Lord Keeper of the Privy Seal at his residence but gives no date as to when this meeting took place. The last entry of this chapter seems to relate to 20th of August. It seems that the entry does not complete the story of the 20 th and is continued an the 9th of October 1937 in Chapter 250A. Chapter 250B begins with the record of a conversation that had taken place a month earlier, that is on the 10th September and purports to end with a story of the 20th. The next chapter recorded on the 13th October 1937 begins with undated stories which seem to have taken place prior to the 27th of September and ends with 4th October. The next entry is chapter 252 and is dated 30th October 1937. It begins with an account of the 5th October and ends with what the author learnt on the 14th. Chapter 253 dated the 25th October 1937 also begins with undated events and ends with the night of 24th. I need not multiply these examples. They sufficiently indicate that there is no regular course observable in these entries. Most of these entries purport to record the statements made by others in course of some conversation. These statements appear in the entries within quotation marks, and most of them are very long quotations. In some of these conversations Baron HARADA records himself as being a participant. But in others he does not even claim to have been present there and what he records purports to be what, sometime after the conversation, had been reported to him either by a participant in the conversation or by a third party, some considerable time before he could find time to record the same.
I for myself find great difficulty in accepting and acting upon an evidence of this character in a trial in which the life and liberty of individuals are concerned. Some of these statements are ascribed to persons who had already appeared before us as prosecution witnesses. The defense was not even told at that time that this record of their prior statement would be offered in evidence.
An account of the manner in which this document was brought into existence will appear from the evidence of the witness Mrs. KONOYE at pages 37,462 to 37, 534 of the record. She was Baron HARADA’s stenographer. Or, more correctly, she was Countess KONOYE, wife of the younger brother of Prince KONOYE. As she had knowledge of shorthand, her assistance in this respect was specially requisitioned and obtained by Baron HARADA. She says that during the period from 1930 to 1940 she took down in shorthand the notes dictated by the Baron. Her evidence is:
“These notes taken by me in shorthand were transcribed in Japanese by me and given to Baron HARADA for approval.
“Baron HARADA took the transcription to Prince Kimmocchi SAIONJI for corrections and suggestions.
“Prince SAIONJI’s corrections and/or suggestions were incorporated in the completed form which I wrote in my own handwriting.”
The witness says that she had been shown by Mr. J. G. Lambert, IPS investigator, a photostatic copy of this finished transcription and that she recognized that to be the memoirs of Baron HARADA written by her in her own handwriting. Her evidence is that Baron HARADA dictated to her once or twice a week from notes and from memory the first drafts of the record. In her cross-examination she said that on several occasions there might have been such recording once every two weeks or once every three weeks. After some confusion the witness succeeded in making it clear that the method adopted in making this memoir was as follows:
1. Baron HARADA dictated to the witness either from a previous note or from memory.
2. She took down in shorthand.
3. She then transcribed the note and placed it before the Baron.
4. The Baron sometimes made corrections and showed it to Prince SAIONJI.
5. Prince SAIONJI also made corrections from time to time.
6. These corrected transcriptions were given to the witness and she rewrote the whole thing as corrected.
7. This rewritten transcription was again corrected by one Mr. SATOMI.
8. The corrected transcript was again rewritten by the witness.
At one time we were told that the photostatic copy was of the rewritten transcription mentioned in item 6; that is to say, of the fair copy which was made by this witness after Prince SAIONJI had made his corrections on the original draft and incorporating those corrections (Record page 37, 529). Subsequently, however, the prosecution corrected that statement of the witness by saying that the copy was of the transcriptions corrected up to item 5. This the prosecution had to say after comparing with the original of the photostatic copy.
The condition of the entries made on dictation was such that “it would have been difficult for one to determine whether Baron HARADA was referring to present tense or past tense and it was difficult to determine the predicate and subject of the sentence and it was also difficult to tell who was saying what.’’While transcribing her shorthand notes the witness “had great difficulty in trying to discover just what portion in a given sentence was the subject.” She “did the best she could and wrote it out the way she thought it should be.
This document, it must be noticed, was offered in evidence only after the defense closed their case. It was sought to be presented under the garb of evidence in rebuttal.
It was pointed out by the President of the Tribunal that the British law regarding rebuttal can be stated as follows:
“Whenever evidence has been given by the defense introducing new matter which the Crown could not foresee, counsel for the prosecution may be allowed to give evidence in reply to contradict it. The matter is one within the discretion of the judge at the trial" (R. P. 37, 188).
He also pointed out that “the American practice before the military courts is not substantially different from the British in this regard”.
Mr. Comyns Carr for the prosecution urged that there are three types of additional evidence which may, in an ordinary case in an English or American Court, be offered by the prosecution at the close of the case for the defense:
1. Rebuttal in the strict sense.
2. Evidence of a statement previously made by an accused or other defense witness which has been put to him and which he has in whole or in part denied.
3. An entirely new matter which has only come to the knowledge of the prosecution after the prosecution case was closed.
Mr. Carr claimed A SPECIAL CLASS for this case; namely,
4. Certain matters which were opened as part of the case for prosecution; but, owing to the evidence not being available, permission was asked and granted by the Tribunal for that evidence to be produced at a later stage when it would be available.
He claimed yet another class as a special one for this case, namely, cases where a witness has been called on the part of an accused to give evidence as to the opinion and policy of that accused, previous statements alleged to have been made by the accused contrary to the evidence of the witness should be admitted in rebuttal.
The Tribunal ruled that it should receive “ evidence in rebuttal ”. Whether any particular piece of evidence will be received will depend upon the circumstances (R. P. 37, 205)
With this ruling evidence began to be tendered. But soon difficulties arose as to their coming in as evidence of rebuttal in the strict sense of that term. The Tribunal ultimately ruled in these terms:
“The Tribunal has decided to receive any evidence tendered by the prosecution which in the judgment of the Tribunal has probative value and is of importance; but the defense may apply to tender evidence in answer to the prosecution’s further evidence and each application will be considered on its merits” (R. P. 37, 330);
It was further clarified by saying that “there will be only two tests of evidence offered; Has it probative value? Is it important? This we did on the
14th of January 1948 and it was a majority decision. It was made clear that “REBUTTAL”WOULD NOT BE THE RIGHT TERM to apply to this further evidence (R.P. 37,333).
The excerpts from HARADA-SAIONJI memoir were offered in evidence under this ruling on the 16th of January 1948.
Mr. Logan took objection to their admission stating the following:
1. The probative value of the memoirs is best demonstrated by the evidence of Mrs. KONOYE where she speaks of many difficulties she felt in transcribing her notes.
2. The memoirs are entirely predicated upon hearsay, prejudice, gossip, opinion, speculation, rumour, and conjecture.
3. Before any conversations which HARADA had with any other person are admitted in evidence in this case, the prosecution should produce evidence that Prince SAIONJI did not edit those particular conversations (R.P. 37,339).
4. The prosecution should explain why they withheld the introduction of these excerpts so long though they had the documents shortly after the war.
5. The original small pocket note-books from which HARADA is said to have dictated this memoir from time to time are the best evidence and therefore should have been offered in evidence.
6. Many instances are found in the memoir where HARADA who was not in the Cabinet, Privy Council or in the Military, is reporting second and third hand hearsay of what took place at meetings of these bodies.
We overruled this objection and allowed the prosecution to bring in the excerpts. The very first excerpt that was placed before us was full of translator’s notes in parenthesis. I believe it would not be an exaggeration to say that almost half of this excerpt consisted of such notes. This excerpt purports to give the reason why this memoir was undertaken. It says:“This record was started in 1929. The following is the reason why this was undertaken: At the time of the London Treaty only false rumours about the issue prevailed; and the truth about the matter was never known. Especially, the attitude taken by the Emperor has been, for the most part, falsely rumoured. However, the counsel given to the Throne and actions taken by the Genro, court officials close to the Emperor, and the Cabinet Ministers on the whole, created serious perturbations in the political circles; and this was the direct cause of subsequent disturbances in the Army and Navy. The virtues and intelligent perspicacity of the Emperor were perverted almost beyond imagination by propaganda. I felt that this was an exceedingly regrettable fact. Since I knew, in my capacity the truth of the matter, I felt that there was a necessity for recording this in written form for posterity. Therefore, I consulted KONOYE, we decided to seek the assistance of (Viscountess KONOYE, Yanuko) the wife of (Viscount KONOYE) Hidemaro, the younger brother of Prince KONOYE, and have her take it down (as I dictated it) and thus preserve it for posterity. It has now grown to 10, 000 pages.”
This occurs in chapter 378 dated 20th October 1940 in pages 2, 974 to 2,977.
So, the author starts his work with the set object of leaving for a distant future generation a particular account of a course of political events which, according to him, is to be the true version, correctly depicting the part of rectitude played by his own favourite group and thereby exposing at that distant future the untruthfulness of the hitherto known version. It was designed to be kept secret during the life-time of the living generation. It does not purport to record from the author’s own personal knowledge. In most cases it was not made contemporaneously with the occurrence of the facts recorded. The likely errors of perception, recollection and narration are present in it with multiple possibilities. The effective witness whose supposed statements the narrating witness relates might himself have made errors in any of these respects. Then comes the possibility of such error with each intervening narrator.
Last of all comes the author himself with his possible errors, prejudices, pre-conceptions, and designs. Both the ability and willingness of so many persons to declare the truth remain untested. We have no means of testing what opportunity any of them had of ascertaining the fact to which his statement relates; his ability to acquire the requisite knowledge equally remains untested. His powers of memory, his situation with respect to the parties, his motives, must all be left unscrutinized and unexamined. Even when all suspicion of veracity is excluded from consideration, it may still be said that facts which the narrator might not have considered material, and therefore did not narrate, might have been disclosed now by cross-examination as having material bearing on the case.
We cannot also ignore the possibility that observations like those reported in this memoir are likely to be misunderstood, mis-remembered and mis-reported. These are also exposed to misconstruction from the ignorance or inattention of the hearers or from their preconceptions. Take with all these infirmities the fact disclosed by the entries themselves that the author cherished a certain amount of dislike for most of the persons against whom these entries are now offered in evidence, and it is not unlikely that, if not designedly, at any rate unconsciously, he might have given them bad character.
The author did not intend to publish the memoir immediately. So he had no fear of contradiction from any source and had not to trouble himself with any risk of detection even if he wanted to give any distorted or garbled version.
In Chapter 378 at page 2, 977 of the memoirs , the author discloses how he was anxious for the safe custody of his memoirs and how it was designed not to allow these memoirs to be published till after the death of Prince SAIONJI and perhaps till long after the extinction of the living memory. Prince SAIONJI himself in his will “expressly prohibited the preparation of an official biography lest the revelation therein produce disastrous, unpredictable effects in future ages." Baron HARADA, however, is said to have contemplated the future official publication of the Memoirs, though not for “one hundred or more years after the death”of the Prince (See Part I of the Memoirs—Introductory Notes.)
Even assuming that, though started with a definite pre-conceived object, no circumstances have been disclosed indicating any possibility of falsification, or raising any suspicion that the record of events would not be sincere and accurate, there is still a great deal of difficulty in accepting the excerpts as evidence of what the prosecution sought to establish thereby. The prosecution sought to utilize the excerpts from this document , not so much to establish the happening of any contemporaneous event, as to introduce the sinister STATEMENTS alleged to have been made by the several accused in relation to that event, and from such statements to infer a particular attitude of the accused in relation thereto. In my opinion, the entries in the memoirs are specially worthless for this purpose.
Most of the statements were not statements made to the author or heard by him personally. His information is sometimes more than second hand. His informants in most cases purport to have reported to him several days after they themselves heard the statement or got their information about that statement. There is no evidence that the author himself recorded the statement even at the time when it was narrated to him by his informant. He himself dictated his memoir several days after he got the information.
Very often when proceeding to dictate his note for these memoirs he purported to dictate several statements made by several different persons on several different occasions. It is difficult to attach any value to such a recording of alleged statements ascribed to the accused. By way of illustration I might refer to an excerpt marked exhibit 3788-A which is an excerpt from a day' s entry purporting to record sixteen different conversations with sixteen different persons. On the strength of such recording we are to ascribe the sinister expression used therein to the accused and therefrom to infer their criminal mentality. I must confess it will be difficult for me to utilize this sort of evidence for that purpose.
THE RULE AGAINST LEADING QUESTIONS lost all its practical importance when we decided to allow the prosecution to adduce, in lieu of presenting the witness for direct examination in court, the affidavit of the witness or his statement taken out of court, offering the witness only for cross-examination. We arrived at this decision almost at the commencement of the trial on the 18th June 1946. We allowed this with certain amount of misgivings. In communicating our decision in this respect the President observed:
“You recognize, Mr. Justice Mansfield, that we are making a big concession here, perhaps not without grave misgivings. This matter was debated among us very seriously for a considerable time. You realize that the witness, as the deponent probably, in most cases, said what he did say as the result of a number of leading questions which we would not allow if he were examined in court. For that reason if we do admit these affidavits, in view of the peculiar circumstances attending them, we will, I venture to say on behalf of my colleagues, insist on a high standard of cross-examination. You see, the defect of it is that the deponent is allowed to give evidence in response to leading questions” (page 935—June 19, 1946).
The defense, of course, objected to this procedure, but we overruled their objection saying that we were “not bound by the rules of evidence or the rules of the procedure . Yet, it cannot be denied that a leading question may often induce an answer which misrepresents the actual recollection of the witness and perhaps causes aberration from a correct spontaneous narration. In the language of Chief Justice Appleton,
“The real danger is that of collusion between the witness interrogated and the counsel interrogating that the counsel will deliberately imply or suggest falsely facts with the expectation on his part and with an understanding on the part of the witness that he will assent to the truth of the false facts suggested.” We did not think that in the present case there was any such danger and we still feel there was no such danger. The infirmity which might have attached to the evidence taken thus goes only to the extent to which the process of narrative-utterance can possibly be affected by suggestion in general and by interrogation in particular. Modern experimental psychology confirms that the use of the interrogatory increases the range but decreases the accuracy of the narration.
We were from time to time called upon by the defense to reject some items of the prosecution evidence on the ground that they had no probative value.
As far back as 22 July 1946, the affidavit of the prosecution witness, Mr. Morishima, was objected to by the defense on the ground that it "stated theories and opinions of the witness and did not confine itself to the statement of facts.”
In overruling this objection, the President observed: “It certainly should not be in that form but I am afraid we will have to receive it for what probative value it has” (proceedings, page 2, 324).
On July 30, 1946 objection was made by the defense to the introduction of a document on the ground that it had no probative value, because it was not clear when the document was first written. In overruling the objection, the President observed: “The question of whether any document or any other evidence has any probative value or not will have to be considered when we come to review the whole of the evidence. There may be rare exceptions but I cannot say this is one of them” (proceedings, page 2, 700—July 30,1946).
THE CONSIDERATION OF “PROBATIVE VALUE" AS A FACTOR in determining the admissibility or otherwise of the evidence offered arose in this case in view of the provisions in the Charter contained in Article 13. As I read the Charter, it does not say that on this consideration we can reject any evidence otherwise relevant to the issue and hence admissible. Its true meaning appears to me to be that, free as we were from any technical rule of evidence, we might admit anything though not admissible under any technical rule, provided the thing offered had, in our opinion, some probative value. In other words, the Charter instead of introducing greater stringency in any technical rule of exclusion prevailing in any national system, intended this little restriction only when we were in the otherwise unrestricted field. It did not entitle us to exclude any evidence, otherwise relevant and admissible, on the strength of this new exclusionary provision.
As regards the affidavit of Morishima it was no evidence at all in so far as it consisted of his opinion or belief.
THE OPINIONS OR BELIEFS of third persons are as a general rule no evidence at all, and therefore inadmissible. Witnesses are to state facts only, i. e., what
they themselves saw or heard. It is the function of the judge and jury to form their own conclusion or opinion on the facts stated. In the language of Phipson “opinions, in so far as they may be founded on no evidence or illegal evidence, are worthless, and in so far as they may be founded on legal evidence, tend to usurp the functions of the Tribunal whose province alone it is to draw conclusions of law or fact.”
There are, however, cases in which the court is not in a position to form a correct judgment, e. g., when the question involved is beyond the range of common experience or common knowledge or when special study of a subject or special experience therein is necessary. In such cases the help of experts is required in matters in which special study or training or experience is necessary . In these cases expert evidence is admitted to enable the court to come to a proper decision. The rule admitting expert evidence is founded on necessity.
The principle relating to opinion testimony may roughly be summarized thus: First, all witnesses, whether testifying on observed data of their own or on data furnished by others, may state their inferences so far only as they have some SPECIAL SKILL which can be applied to interpret or draw inferences from these data. Secondly, witnesses having no special skill, who have had personal observation of the matter in hand, may, as a result of their personal observation, have drawn inferences or made interpretations which the tribunal could equally well make from the same data of personal observation, if laid before them; and thus if it is possible to detail these data fully for the Tribunal, the witness’s own inferences are superfluous.
Following the principle discussed above we rejected much evidence sought to be adduced in this case which, in our opinion, simply purported to testify to the opinion entertained by the authors thereof. On this ground, for example, we rejected the statements of Mr. Grew expressive of his estimate of the events happening in China or in Japan during the relevant period. We similarly rejected the views of the Right Honourable Sir Robert Craigie, Sir Reginald Johnston, Mr. John Powell and similar other persons. We also declined to admit in evidence opinions of the then Japanese statesmen, reviews of the then affairs by the Institute of Pacific Relations and the like.
In my opinion the indiscriminate application of the principle to all these matters was not justifiable in the circumstances of the present case. I have already pointed out the difficulty we shall have to face in determining whether or not any particular action taken by Japan was aggressive. If for that purpose, we are called upon to see NOT so much whether any particular circumstances were actually present or any particular event actually happened, but whether the persons acting upon their assumption, bona fide believed their existence or happening and acted reasonably on that belief, then, in my judgment, contemporaneous views, opinions and beliefs of diverse statesmen, diplomats, journalists and the like of different nationalities including Japan would have much evidentiary value. Such views, beliefs and opinions would, in my opinion, be very valuable and pertinent evidentiary facts in this case, not for the purpose of establishing the actual existence of any circumstance in question or the actual happening of any event in issue, but to establish the general prevalent view and thence the bona fides of the views and beliefs of the persons concerned in the present case.
Though the Charter sought to make us independent of all artificial rules of procedure, we could not discard such rules altogether, The practical conditions of the trial necessitated CERTAIN RESTRICTIONS. This however might not have always yielded happy results.
THE RESTRICTIVE RULES, which we introduced in determining the evidence offered by the parties in this case, stand thus:
1. All cross-examinations shall be limited to matters arising in the examination-in-chief (p. 2, 515, July 25, 1946).
2. No evidence as to the contents of a document shall be accepted without producing the document or accounting for its absence.
3. No self-serving statement shall be taken in evidence.
4. No evidence of the existence or spread of Communism or of any other ideology in China or elsewhere is relevant in the general phase. Evidence of an actual attack on Japanese nationals or property by Chinese Communists or any other Chinese may be given in justification of Japan ’ s acts. When the accused come to give evidence they may tender their fear of Communism in explanation of their acts (p. 21,081, 29 April 1947.)
Later on, the Tribunal decided to receive evidence of THREATENED ATTACK OF CERTAIN CHARACTER, namely where the threat is of a serious nature, where it is imminent, and where the persons making it have present ability to give effect to it (p. 21,115).
It is one of THE CARDINAL RULES OF EXAMINATION of witnesses in many systems that the examination-in-chief and cross-examination must relate to relevant facts, but that the cross-examination need not be confined to the facts to which the witness testifies in his examination-in-chief.
THE MOST EFFECTIVE AND MOST WIDELY USEFUL of all the different sorts of CROSS-EXAMINATION is that in which one has the opposite witness to prove independent facts in one’s favour. John C. Reed in his “Conduct of Law Suits” while commenting on the essential function of cross-examination, says: “You cross-examine three classes (of witnesses):
"(1 ) The witness whose version you accept so far as it goes.
"(2) The witness whom you show to be mistaken, or the force of whose testimony you take off by other means, not however by attacking his veracity.
"(3) The witness whom you show to be unworthy of credit.
"We add that there are really but two kinds of witnesses, the truthful and the untruthful; and consequently there are at botton but two kinds of cross-examination, THE ONE intended to elicit friendly evidence, and the other to show the unreliability of the witness . . . the first kind is in general use in every sort of case, while the second is only of occasional importance . . . Your objects with him (the first class) are but two, (a) the first to have him complete what the direct examiner has incompletely presented through . . . partial questions . . . and ( b ) the second to make him, if you can, re-enforce your own proofs.”
After explaining the first of these two objects, the learned author proceeds: “We now come to what is practically the most effective and most widely useful of all different sorts of cross-examination. In it you have the opposite witness to prove independent facts in your favour . . . Note the usual cross-examination by good practitioners, and you will find that in a large proportion they ask hardly any questions except such as are now our special subject. In most cases they see intuitively that there is no very distorted statement to be rectified, and that there are no serious mistakes to be corrected; and they only make the witness re-enforce their side as to some detail . . . While the kind of cross-examination now in hand is the most important of all, it is also the most easy ...”
This no doubt is the English rule: But it is also sound principle. It is followed in some jurisdictions in America. The Federal Rule introduced by Story J. in 1840 “that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination”, now prevails in most states. According to this rule, if the cross-examining party wishes to examine the witness on other matters, he must do so by making the witness his own, and calling him as such in the subsequent progress of the suit.
By a majority decision we adopted this American Rule in preference to the English Rule.
We could not admit in evidence thé contents of the published books of eminent authors like the Right Hon’ble Sir Robert Craigie, former ambassador to Japan from Great Britain, Mr. Grew, former ambassador to Japan from the United States, Sir Reginald F. Johnston and Mr. Woodhead, a journalist, perhaps for some sound reasons. Jonh Powell was another such author and he came to depose on behalf of the prosecution. The prosecution kept his examination-in-chief within a narrow compass. The defense in their cross- examination of him wanted to take advantage of the information and knowledge of the witness as disclosed in his published book. But this rule of ours stood in their way. Subsequently they sought to bring in his book but failed (vide proceedings, pages 17, 277, 17, 298-17, 302). John Powell had died in the meantime, and whatever information in favour of the defense he might have possessed was lost to the defense.
As has been noticed above, the Charter released us from all technical rules of evidence and entitled us to admit any evidence which the Tribunal would deem to have probative value. In particular we were entitled to admit a copy of a document or other secondary evidence of its contents, if the original was not immediately available.
Despite this, we applied THE BEST EVIDENCE RULE as to the contents of a document with meticulous strictness (p. 18,975—24 March 1947).
We sometimes rejected statements made long before the termination of the present hostilities, almost contemporaneous with the time of any relevant incident, if the statement happened to refer to the contents of any document and that document was not produced. We did not accept such statements even if it were certified by the requisite authority that it could not find the document now. We insisted upon a certificate that the document had been destroyed.
I, for myself, did not see much sense in the rule of exclusion at a trial where any amount of hearsay evidence had to be taken in.
The rule rests on the maxim that the ‘best evidence’ must always be produced. The importance of the strict observance of this rule is perhaps best expressed in the language of Lord Tenterden in Vincent v. Cole and of Lord Wynford in Strother v. Barr. Lord Tenterden observed: “I have always acted most strictly on the rule, that what is in writing shall only be proved by the writing itself. My experience has taught me extreme danger of relying on the recollection of witnesses, however honest, as to the contents of a written instrument; they may be so easily mistaken that I think the purposes of justice require the strict enforcement of the rule.”
Similarly, Lord Wynford observed: “I seldom pass a day in a Nisi Prius court without wishing that there had been some written instrument evidentiary of the matters in dispute. More actions have arisen, perhaps from want of attention and observation at the time of a transaction, from the imperfection of human memory, and from witness being too ignorant, and too much under the influence of prejudice, to give a true account of it, than from any other cause. There is often a great difficulty in getting at the truth by means of a parol testimony. Our ancestors were wise in making it a rule, that in all cases the best evidence that could be had should be produced; and great writers on the law of evidence say, if the best evidence be kept back, it raises a suspicion that, if produced, it would falsify the secondary evidence on which the party has rested his case. The first case these writers refer to as being governed by this rule is, that where there is a contract in writing, no parol testimony can be received of its contents unless the instrument be proved to have been lost.”
One of the main reasons for the adoption of this rule is, that the court may require a knowledge of the whole contents of the instrument, which may have a very different effect from the statement of a part.
Non-production of the more trustworthy kind of evidence certainly tells against the weight of the evidence produced, but, in my opinion, it does not affect the latter’s admissibility.
I believe the rule that documents must be proved by primary evidence except in certain specified cases and under certain specified circumstances must be distinguished from another exclusionary rule of evidence apparently of the same category. I mean the rule of evidence which excludes other evidence of the terms of a contract or grant or of any other disposition of property which have been reduced to the form of a document or which are required by law to be so reduced to the form of a document. In the case of such contract etc. no evidence shall be given in proof of the terms of the contract or grant except the document itself or secondary evidence of its contents in cases in which such secondary evidence is admissible. Here the written contract is of the very essence of the transaction. But WHERE A WRITTEN INSTRUMENT IS NOT A FACT IN ISSUE but only a piece of evidence in proof of some act, other independent evidence is admissible. Non-production of the document in such a case may amount to non-production of the more trustworthy kind of evidence and may thus tell against the weight of the evidence produced. It does not affect the admissibility. At any rate, in a proceeding where we had to allow the prosecution to bring in any amount of hearsay evidence, it was somewhat misplaced caution to introduce this best evidence rule, particularly when it operated practically against the defense only.
None of the documents in question here was in the possession or power of the accused or of the witnesses whose statements referred to them. The defense might, I believe, give secondary evidence of their contents by giving notice to the party in whose possession or power such documents were to produce them in court. Perhaps they did not follow this procedure with accuracy. But they produced certificates from the very person that the same were not available for production. I don’t see why, even then, these statements could not be admitted in evidence.
Further, remembering that we were a Criminal Court, it perhaps devolved upon us to frame such a notice to produce the document as we might consider reasonable.
In some of the instances the document in question was in the possession or power of the adverse party. We might, at least in these cases, admit the statement leaving it to the prosecution to impeach its correctness by the production of the document.
Of course, even under the Charter we were to admit only the EVIDENCE RELEVANT to the fact or facts in issue.
The expression ‘fact in issue’ would mean any fact from which either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessarily follows:
As regards criminal cases the charge constitutes and includes the facts in issue.
Of all the rules of evidence, the most universal and the most obvious is that the evidence adduced should be alike DIRECTED and CONFINED to the matters which are in dispute or which form the subject of investigation. Anything which is neither directly nor indirectly relevant to these matters ought, at once, to be put aside.
Evidence may be rejected as irrelevant for the following reasons:
1. That the connection between the principal and the evidentiary fact is too remote and conjectural.
2. (a) That it is excluded by the state of pleadings or what is analogous to the pleadings; or
(b) is rendered superfluous by the admission of the party against whom it is offered.
WE HAVE DISALLOWED the following categories of evidence sought to be introduced by the defense:
1. Evidence relating to the state of affairs in China prior to the time when the Japanese armed forces began to operate (p. 2, 505, July 25, 1946).
2. The evidence showing that the Japanese forces in China restored peace and tranquillity there (proc. page 2, 154—July 9, 1946).
It was observed in this connection that “ none of the accused will be exculpated merely because it is shown, if it is shown, that the Japanese forces in China restored peace and tranquillity there. What you must establish ... is that the Japanese armed forces . . . had authority or justification or excuse for what they did."
3. Evidence relating to the Chinese trouble with Great Britain in 1927 (proc. page 21, 106)..
4. Evidence showing the public opinion of the Japanese people that Manchuria was the life-line of Japan (proc. page 3, 134, August 2, 1946).
It was observed in this connection that “that type of reasoning is useless. What does it matter ... if the Japanese people did think they needed a part of China? Their honest belief, if it be an honest belief, as to their needs for part of China, is not justification for an aggressive war.”
5. (a) Evidence as to the relations between the U. S. S. R. and Finland, Latvia, Esthonia, Poland and Roumania.
(b) Evidence as to the relations between the U. S. and Denmark vis-a-vis Greenland and Iceland (proc. page 17, 635— March 3, 1947).
(c) Evidence as to the relations between Russia and Great Britain and Iran.
6. Evidence relating to A-Bomb decision (proc. page 17, 662).
7. Evidence regarding the Reservation by the Several States while signing the Pact of Paris (proc. page 17,665).
(a) The United Nations Charter, (proc. page 17,682).
(b) The Lansing-Scott Report.
(a) Statements prepared by the then Japanese Government for the Press —Press release—(proceedings, pages 20, 508, 20,511, 20, 549, 20, 606, 20, 608, 20, 801, 20, 807, 20, 809, 20,815, 20,825, 20,860, 20,866, 20,882, 20,939).
We have discarded these on the ground that these were prepared for the PROPAGANDA PURPOSES and consequently have NO PROBATIVE VALUE.
(b) Statements made by the then Japanese Foreign Office (proc. page 21, 134-21, 139)—These were discarded as being SELF-SERVING STATEMENTS.
10. Evidence relating to Communism in China: The Tribunal was of opinion that no evidence of the existence or spread of Communism or of any other ideology in China or elsewhere is relevant in the general phase. Evidence of an actual attack on Japanese nationals or property by Chinese Communists or any other Chinese may be given in justification of Japan’s act.
When the accused come to give evidence, they may tender their fear of Communism in explanation of their acts. This was decided on 29 April 1947 by a majority of the Tribunal (proc. page 21, 081). Later on it was ruled that ‘assault’ includes a threat of assault (proc. page 21,113), where the threat is of a serious nature, where it is imminent, and where the persons making it have present ability to give effect to it (proc. page 21,115).
11. Evidence otherwise considered to have NO PROBATIVE VALUE: (proc. pages 18, 805, 18, 809, 18, 826, 19, 178, 19, 476, 19, 614, 19,715, 20,930, 20,960).