DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL
As regards THE PRESS RELEASES of the then Japanese Government, THE GROUNDS ON WHICH WE REJECTED them were in substance the following:
1. These documents emanate either from the Board of Information or from what are called Foreign Office Spokesmen. They paint with a Japanese brush a picture of events for consumption at home and abroad. Any statement by the Board of Information or by a Foreign Office spokesman as to what took place in China does not prove the fact of what took place in China one way or another. They may have no probative value (proc. page 20,508).
2. It is pure propaganda and nothing else. It seems to be nothing but argument from the Japanese viewpoint; propaganda, in short (proc. pages 20,806, 20,801).
3. It is a document painting the picture from the Japanese point of view on matters which are in dispute before this Tribunal and which cannot be decided by a statement in English found in the Japanese Foreign Office.
4. Evidence relating to the activities of the belligerent armies would stand “in the order of probative value” thus:
(*) A person present who gives a credible account.
(ii) Dispatches of Commanders in the field.
Versions of (i) and (ii) for public or enemy consumption are not of probative value (proc. page 20,809).
5. These are self-serving statements and hence are not admissible (proc. page 20,810-15).
6. Public declarations of alleged facts by the Japanese Government which are to be circulated through the press for other and even enemy countries cannot be accepted as candid or complete so as to possess Probative value (proc. page 20, 810-15).
We had, however, admitted in evidence press release of the prosecuting nations when offered in evidence by the prosecution; vide Exhibits 952, 959, 960, 963, 982, 1, 013, 1, 102, 1, 287 etc. (proceedings, pages 9, 438, 9,463, 9,464, 9,476, 9,556, 9,667, 10,047, 11,679 etc.).
I have considered elsewhere in this judgment the place of propaganda in International life. No doubt efficient propaganda sometimes aims at convincing the world public of “the most bizarre fairy tales that have ever been devised”.
“Between two countries at war there was always a danger that one or other of the combatants would seek to turn public opinion in his favour by resort to a propaganda in which incidents were magnified and distorted for the express purpose of inflaming prejudice and passion and obscuring the real issue of the conflict.” Even the story of Nanking rape was looked upon in the above light at an address at Chatham House held on 10th November 1938 with Colonel G. R. V. Steward C.B., C.B.E., D. S.O. in the Chair.
Yet keeping in view the place assigned to this propaganda by the Great Powers in their respective government organizations, it would be unjustifiable to stigmatize it as synonymous with falsehood, or even as raising a presumption that it is a lie. I believe that when we make it a rule of evidence that this statement was prepared for propaganda and therefore has no probative value, we assume that a propaganda is prima facie a lie. In my opinion we have no materials before us to justify such sweeping assumption and I believe no power in the world would appreciate this implied characterization of propaganda. I may mention in this connection that we have no evidence before us which would entitle us to ascribe any special character to Japanese propaganda.
PROPAGANDA IS OFTEN ABUSED. But ITS PRIMARY FUNCTION is to inform, influence and win mass opinion of the world, not necessarily by misinforming.
Even if these press releases be taken as “painting with a Japanese brush a picture of events for consumption at home and abroad” they would present us with one version of the event, the prosecution having given us another version. It will be for us to decide which version we should accept. The prosecution version is also a version of a party. Some infirmity is likely to be present in both.
A rule rejecting “versions of a person present or of Commanders in the field given for public or enemy consumption” is perhaps an extreme rule of caution. Such a rule perhaps will help the elimination of everything tainted with any doubt or suspicion. But when our record has already been allowed to be filled up with dubious materials introduced by one party under relaxed rules, I doubt very much if it was not too late for us to introduce these healthy exclusionary rules only to eliminate equally dubious materials coming from the defense to compete with the prosecution materials of similar character.
I also have my doubts if we were correct in characterizing these statements as ‘self-serving’. None of these press releases could be described to the authorship of any of the accused before us.
It might be noticed here in passing that those who hold that the Charter defines the crime for which this trial is being held and that that definition is binding on the Tribunal, offer, as one of their grounds for so holding, that the sovereignty of the vanquished state devolves on the victors by right of conquest and that the present prosecution is in exercise of that sovereign right. If this is so, it may be that the prosecution would be bound by these statements of its predecessor state.
If the evidence offered relates to a relevant fact in issue, then its rejection on the ground that it has no probative value really means appreciation of its weight in fragment. In my opinion, it is risky thus to treat each piece of evidence singly and reject the same on the ground that it has no weight. I believe the view we took on the 22nd July 1946 on the defense objection to prosecution evidence was preferable to that we subsequently took on the prosecution objection to the defense evidence.
For weighing evidence and drawing inferences from it, there can hardly be any canon. Each case presents its own peculiarities and commonsense and shrewdness must be brought to bear on the facts elicited in every case.
The effect of evidence must necessarily be left to the discretion of each judge.
As regards item 4, I doubt if we were right in saying that THE VIEWS OF THE JAPANESE PEOPLE had no bearing at all on the question before us. It cannot be denied that in the realm of foreign policy, the preservation of interest of the nation has always been taken to be the main consideration. In the words of Lord Palmerston, the principle on which the foreign affairs of a country ought to be conducted is the principle of maintaining peace and friendly understanding with all nations, so long as it was possible to do so consistently with due regard to the interests, the honour and the dignity of the country. “If I might be allowed”, says Lord Palmerston, “to express in one sentence the principle which I think ought to guide an English Minister, I would adopt the expression of Canning, and say that with every British Minister the interests of England ought to be the Shibboleth of his policy.” It has been looked upon as a duty of statesmen to abide by this principle and it has been justified by the idea of the political trust which governments execute on behalf of their people.
Of course the mere voice of the people would not establish their interest. Existence of such interests must be established by other evidence, and it has been sought to be so established. If we accept that as established, then, the people’s voice might go to show their aliveness to this interest and though not justifying, might at least, explain the adoption of this foreign policy without having recourse to a theory of conspiracy.
I am not sure that we were right in rejecting the evidence referred to in item 5 above.
Remembering the nature of the so-called family of Nations, THE MEANING WHICH THE PARTIES TO THE PACT GAVE TO IT is much more important than anything else in its interpretation. This meaning becomes a stronger guide when it is attended with a conduct consistent only with such meaning.
I equally felt difficulties in agreeing with the decision regarding items 1 to 3 of the rejected evidence.
The Defense proposed to establish that the state of affairs in China which since 1922 was put forward by the several Signatory Powers of the Treaty of
Washington as grounds for not giving effect to that treaty, and which provoked some pungent condemnation by America in 1925 and some hostile action by Great Britain in 1927 became even worse when the TANAKA Cabinet assumed the alleged policy towards China or when Japan took action against China. Their offer was thus to establish the existence of a state of affairs which always, by all the Powers has been considered as presenting occasions for similar statement of policy or similar action. They further offered to establish the result of Japan’s action which, according to them, would retro- spectantly indicate both necessity and justification for Japan ’ s original action.
It would certainly be wrong to justify Japan’s policy in China at the present moment by reference to the policy of other Powers in the long past. If the conduct of powers today were to be based upon the conduct of powers in the past, the outlook for the world in the future was very gloomy indeed. Ordinarily it is of little use to try to elucidate the present by a comparison with the past. It is to be hoped that during the course of years, the standard of international morality had not remained stationary, but had been advanced so that acts which had been justified by international practice in the past were no longer justifiable today.
But the past in question here had a very relevant connection with the present. The prosecution case lays much emphasis on the Nine-Power Treaty of Washington: the incidents in question relate to a period after that treaty and the Powers were all its Signatory Powers. I still feel difficulty in disregarding the defense reason for this offer. I would only add that even if such matters would fail to justify the action taken by Japan, they might at least offer AN EXPLANATION of the happening and to this extent might weaken the prosecution case of conspiracy.
As we shall see later, the very essence of the prosecution case is the existence of a conspiracy, plan or design of the kind alleged in Count 1 of the indictment.
In order to establish this conspiracy the prosecution relied mainly on circumstantial evidence. As I read the prosecution evidence there is not a single item in it which goes directly to establish this conspiracy. Whatever that be, the prosecution, at least, relied strongly on the evidence of subsequent occurrences and invited us to draw an inference therefrom that these were all the result of the alleged conspiracy and hence established that conspiracy by reference back.
After the close of the prosecution case the defense moved the Tribunal for dismissal of the case asserting that the evidence adduced did not disclose any prima facie case against any of the accused.
In reply to this motion the prosecution laid stress on what it characterized as the conspiracy method of proof and emphasized that the occurrences from the Mukden incident of 18th September 1931 to the invasion of Pearl Harbour all lead to the inference of the over-all conspiracy as asserted in Count 1.
The defense motion was ultimately rejected by the Tribunal.
In the result the defense must be taken to have been called upon to adduce evidence:
1. to disprove the occurrences.
2. to explain them.
3. to justify them.
The importance of item 2 as specified above cannot be minimized by the defense in view of the charge contained in Count 1. To the extent to which the defense succeeds in explaining any occurrence, the prosecution case of over-all conspiracy is explained away. Apart, therefore, from the consideration whether the incident offered by way of explanation of the occurrence would or would not justify the action taken by Japan, it is relevant as an EXPLANATION and consequently the defense was entitled to bring it in evidence. Unfortunately the Tribunal in laying emphasis on justification ignored this bearing of mere explanation.
We have rejected the evidence relating to the development of COMMUNISM IN CHINA.
A part of the bearing of this communism on the case before us would appear from the following passages in the summation of the prosecution. The prosecution says:
“She (Japan) accused China of menacing Japan’s national defense by supporting communism and failing to keep law and order. With respect to communism, it is true that for a short period prior to 1927 the communists were permitted to participate in the government, but in 1927 the national leaders decided that communism was a menace and began to fight against it, with the result that by July 1931 the communist strongholds had been taken and the communists were in retreat, having been driven by Generalissimo Chiang Kai-shek into the mountains. However, with the outbreak of September 18, China was compelled to suspend the offensive against the communists and withdraw a large part of her troops and the Communists thereupon resumed the offensive. Thus, at the time Japan was complaining of the communist menace in China, China had the Communists well in hand, only to lose her dominance over them because of Japanese action.” In view of our rejection of the defense evidence we cannot accept this summation of the Prosecution. In this summation the prosecution invites us to accept all the findings of the Lytton Commission in this respect. In my opinion, the defense was entitled to adduce evidence and to ask this Tribunal to come to its own findings as to the questions of fact involved.
The Lytton Commission Report in pages 20 to 23 gives some account of this Communism in China and characterizes it as a menace to the authority of the Chinese Central Government as such. Elsewhere I have dealt with this question of Communist development in China during the relevant period. Here I need only point out what the Commission found in this connection.
The Report says:
1. There is a menace to the authority of the Central Government of China from Communism.
2. The ‘Chinese Communist Party’ was formally constituted in May 1921.
3. In the autumn of 1922, the Soviet Government sent a Mission to China. Important interviews resulted in the joint declaration of January 26, 1923, by which assurance was given of Soviet sympathy and support to the cause of national unification and independence of China. It was explicitly stated, on the other hand, that the Communist organization and the Soviet system of government could not be introduced at that time under the conditions prevailing in China.
(a) Following this agreement a number of military and civil advisers were sent from Moscow by the end of 1923 and undertook . . . the modification of the internal organization of the Kuomintang and of the Cantonese army.
(b) At the first National Congress of the Kuomintang, convened in March 1924, the admission of Chinese Communists into the party was formally agreed to.
(a) There was a period of tolerance with regard to Communism which covered 1924-1927. In 1927 the National Revolution was almost on the point of being transformed into a Communist Revolution.
(b) A national government was constituted at Nanking on 10 th April 1927; a proclamation was issued by the government ordering the immediate purification of the Army and the civil service from Communism.
(i) On July 30, 1927 the garrison at Nanchang, Capitol of Kiangsi Province, together with some other military units, revolted and subjected the population to numerous excesses.
(ii) On December 11, a communist rising at Canton delivered control of the city for two days into their hands.
(iii) The Nanking Government considered that official Soviet agents had actively participated in these uprisings.
(iv) An order of December 14, 1927, withdrew the exequatur of all the consuls of the U. S. S. R. residing in China.
(a) The recrudescence of civil war favoured the growth of Communist influence in the period between 1928 and 1931. A Red Army was organized and extensive areas in Kiangsi and Fukien were Sovietized.
(b) Large part of the Provinces of Fukien and Kiangsi and parts of Kwangtung, are reliably reported to be completely Sovietized.
(c) Communist zones of influences are far more extensive. They cover a large part of China south of the Yangtze, and parts of the provinces of Hupeh, Anhwei, and Kiangsu north of that river. Shanghai has been the centre of communist propaganda.
(d) When a district has been occupied by a Red Army, efforts are made to Sovietize it. Any opposition from the population is suppressed by terrorism.
6. Communism in China does 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 has become an actual rival of the National Government. It possesses its own law, army and government and its own territorial sphere of action.
(a) So far as Japan is China’s nearest neighbour and largest customer, she has suffered more than any other power from the lawless conditions in China.
(6) Over two-thirds of the foreign residents in China are Japanese.
In rejecting the evidence offered by the defense to show the character and development of the Communist movement in China it was ruled that the only relevant evidence in this respect would be that which would show that Japanese interest was actually assailed, or was in imminent danger of being assailed.
The exact language of our ruling in this respect has been given above.
The INTERNATIONAL WORLD seems to consider it legitimate for one state to have the policy “to support free peoples of other states who are resisting attempted subjugation by armed minorities or by outside pressure.”
In view of the very nature of the Communist movement in China as indicated in the Report of the Lytton Commission, the evidence offered by the defense might not have been beside the point. In any case, after excluding the evidence offered by the defense we cannot now accept what the Prosecution offers in its summation as stated above. If the matter at all enters into our consideration, we are, I believe, bound to take it as the defense contended it to be.
But apart from the question of its being a JUSTIFICATION, the defense contended that the evidence was relevant in view of the charge of an over-all conspiracy.
MR. LOGAN for the defense contended, “Not only do these Communistic activities in China exist—did they exist before the beginning of the incident, but they also occurred during the entire period of time. And, since these incidents occurred during the entire period of time, they are material to the charge in the indictment as to whether or not these accused conspired to, and did, wage aggressive war. If this evidence proves, as we believe it does, that incidents were created and stirred up by Communistic activities, the activities of the Communist would be the material to that charge in the indictment. I might also point out, it was Japan’s policy to try and settle and localize these incidents, and the activities of the Communists, it will be shown, prevented the settlement of the incidents and stirred up new ones.”
It might certainly be pertinent evidence TO EXPLAIN THE OCCURRENCE. Whether or not the development sought to be established would have justified the action taken by Japan, it might certainly offer a good explanation of why these occurrences took place and thus might shut out or weaken the inference of over-all conspiracy from such occurrences.
Further, in my opinion, in order to comply with the conditions of the above ruling it might not have been required of the defense to bring in only that item of evidence which would at once satisfy all the conditions. In my opinion, under the ruling, the defense might bring in evidence to establish the threat and then by some other evidence might establish that the threat was of the specified character and by persons of the required capacity. Each and every piece of evidence offered by them need not by itself have shown all these factors. In the application of the rule, however, we insisted that the item offered by itself must satisfy all these requirements.
In this connection we must not lose sight of the following pertinent considerations:
1. Japan had interest in China itself and consequently might not have been disinterested even if Communism in China were a mere ideology.
2. Communism in China might not have been a mere ideology as was noticed by the Lytton Commission.
3. The very history of the development of the Communist movement might justly lead Japan to see the hand of the U. S. S. R. in it.
4. The defense sought to connect the communist movement with the anti-Japanese movement during the relevant period.
Unfortunately in rejecting the evidence of this category we have regarded the situation involved in the case before us as a simple factual one easily recognizable as such and not likely to be mis-apprehended. As a matter of fact there is involved in this situation a complicated superstructure calling for a conclusion on a difficult question of law as a means of determining its existence.
In determining the extent of the right of self-protection in this respect it may again be necessary for us to examine the character of the so-called international society. Professor Schwarzenberger ably analyses the development of modern international law and shows that “its original standards of value were completely eliminated during the gradual process which, starting from the Christian law of nations, led via the law of civilized nations to the victory of positivism and voluntarism. It is apparent from the correlation between community and society and their respective systems of law that whatever community may have existed during the initial stages of the law of nations, it has gradually been transformed into a society.”
“In pre-war Europe, the political system of alliances and counteralliances, which brought in its train the balance of power as a means of preserving peace, was the overriding force. Within its limits, international law could fulfil the functions of society law which is ‘ founded on mutuality and reciprocity’ only in subordination to the requirements of this system. The law of nations either directly served the objects of the balance system or pursued aims not incompatible with it. Even before the World War the forces of nationalism and imperialism threatened to reduce to unlimited anarchy the balance system on which the working of international law depended. In the post war period additional disintegrating forces were brought into play by the incompatibility between the two main objects of the Peace Treaties: hegemony over the former Central Powers on the one hand, and on the other an organized community of the ‘fully self-governing’ nations of the world based on the comprehensive rule of law.”
As I have already pointed out, it requires a serious consideration how far growth of communism extends the right of intervention of a state, remembering the character of change involved in communism in relation to the very fundamentals of the existing state organization and property-rights.
We have rejected some evidence relating to the CHINESE BOYCOTT MOVEMENT offered by the defense, but that is because the existence of the boycott and its aims and effects were not seriously questioned by the prosecution.
As to the existence of this movement in China the Lytton Commission Report itself is sufficient evidence.
The Report says:
“For centuries, the Chinese have been familiar with boycott methods in the organization of their merchants, bankers and craft guilds. These guilds, although they are being modified to meet modern conditions, still exist in large numbers and exercise great power over their members in the defense of their common professional interests. The training and attitude acquired in the course of this century-old guild life has been combined, in the present-day boycott movement, with the recent fervent nationalism of which the Kuomintang is the organized expression.
“The era of modern anti-foreign boycotts employed on a national basis as a political weapon against a foreign Power (as distinct from a professional instrument used by Chinese traders against each other) can be said to have started in 1905, with a boycott directed against the United States of America because of stipulation in the Sino-American Commercial Treaty, as renewed and revised in that year, restricting more severely than before the entry of Chinese into America. From that moment onward until today there have been ten distinct boycotts which can be considered as national in scope (besides anti-foreign movements of a local character), nine of which were directed against Japan and one against the United Kingdom. ”
The Report then after giving the causes and nature of these movements before 1925 proceeds to examine the character of the boycott organization since that year and points out that “the Kuomintang, having from its creation supported the movement, increased its control with each successive boycott until today it is the real organizing, driving, co-ordinating and supervising factor in these demonstrations.”
The Commission noticed three controversial issues involved in the policy and methods of the boycott:
1. Whether the movement was purely spontaneous or was an organized movement imposed upon the people by the Kuomintang by methods which at times amounted to terrorism.
2. Whether or not, in the conduct of the boycott movement, the methods employed have always been legal.
3. What was the extent of the responsibility of the Chinese Government.
The Commission concluded:
1. that the Chinese boycotts were both popular and organized, the main controlling authority being the Kuomintang.
2. that it is difficult to draw any other conclusion than that illegal acts have been constantly committed, and that they have not been sufficiently suppressed by the authorities and the courts.
3. that the evidence indicates that the part taken by the Chinese Government in the present boycott has been somewhat more direct.
In connection with the second of the above conclusions the Commission observed: “in this connection, a distinction should be made between the illegal acts committed directly against foreign residents in casu Japanese, and those committed against Chinese with the avowed intention, however, of causing damage to Japanese interests.
"As far as the former are concerned, they are clearly not only illegal under the laws of China but also incompatible with treaty obligations to protect life and property and to maintain liberty of trade, residence, movement and action.”
With regard to illegal acts committed against Chinese, the Chinese Assessor observed at page 17 of his memorandum on the boycott:
“We would like to observe, in the first place, that a foreign nation is not authorized to raise a question of internal law. In fact, we find ourselves confronted with acts denounced as unlawful but committed by Chinese nationals in prejudice to other Chinese nationals. Their suppression is a matter for the Chinese authorities, and it seems to us that no one has the right of calling into account the manner in which the Chinese penal law is applied in matters where both offenders and sufferers belong to our own nationality. No state has the right of intervention in the administration of exclusively domestic affairs of another State. This is what the principle of mutual respect for each other’s sovereignty and independence means.”
So stated, the argument is incontestable, but it overlooks the fact that the ground of the Japanese complaint is not that one Chinese national has been illegally injured by another but that the injury had been done to Japanese interests by the employment of methods which are illegal under Chinese law, and that failure to enforce the law in such circumstances implies the responsibility of the Chinese Government for the injury done to Japan.
Coming to the question of LEGAL POSITION CREATED BY THESE BOYCOTT MOVEMENTS, the Commission observed: “The claim of the Government that the boycott is a legitimate weapon of defense against military aggression by a stronger country, especially in cases where methods of arbitration have not previously been utilized, raises a question of much wider character. No one can deny the right of the individual Chinese to refuse to buy Japanese goods, use Japanese banks or ships, or to work for Japanese employers, to sell commodities to Japanese, or to maintain social relations with Japanese. Nor is it possible to deny that the Chinese acting individually or even in organized bodies, are entitled to make propaganda on behalf of these ideas always subject to the condition, of course, that the methods do not infringe the laws of the land Whether, however, the organized application of the boycott to the trade of one particular country is consistent with friendly relations or in conformity with treaty obligations is rather a problem of international law then a subject for our enquiry. We would express the hope, however, that in the interest of all States the problem should be considered at an early date and regulated by international agreement.”
The Chinese Assessor in his memoranda presented to the Lytton Commission referred to the 1905 boycott against American goods and quoted the communication of the American Minister of August 7 of that year to Prince Ching, informing him that the United States Government would hold the Chinese Government directly responsible for the loss to American interests sustained through the failure on the part of the Imperial Government to put a stop to the movement. “The Chinese Government,” says the author of the Memoranda, “opposed the claim of the American Minister and refused to admit it.” An extract from Ching’s reply to the American Minister is quoted, wherein it is stated that “this idea of a boycott of American goods came directly from the trades people. It did not come from the Chinese Government which certainly therefore cannot assume the responsibility.”
It is alleged in the Memoranda that “the responsibility of the state supposed to be involved in a boycott has never been seriously raised”; that “in no case has it resulted in the payment of indemnities”; that none were demanded by the United States in the present instance, or by the British on the occasion of the 1925 boycott, although here, too, it is stated that a representative of the aggrieved government alleged the existence of the national responsibility; and that “one can therefore say that international practice does not condemn the boycott as an illegitimate method of bringing pressure.”
While the fact, that two of the members of the family of nations officially announce that a course of action followed by a third is an international delinquency which gives occasion for pecuniary redress, cannot per se create a delinquency, it by no means follows that a failure to demand an indemnity is evidence that a delinquency has not been committed. Nor would such restraint constitute evidence that the course of action complained of is not condemned as illegitimate either in international law or practice. On the other hand, it may be assumed that responsible states are not apt to declare the existence of national responsibility on the part of a sister state in the absence of any legal ground on which to support their contention. The statement in the memoranda that the question of national responsibility for a national boycott “has never been seriously raised” would seem to be controverted by the tenor of the diplomatic exchanges between the United States and China during the boycott controversy of 1905.
I shall deal with this matter more fully while examining the charges in relation to the Japanese action in China.
In considering the subject of the national responsibility in its relation to boycott, it would be necessary to examine carefully into its origin, methods and effect.
International law does not call upon the government of a country to thwart the establishments thereof when they decide, in the course of availing themselves of it, to stop trading with the people of any other.
No duty is imposed on a country to prevent the exercise of a normal right that is inherent in an independent country. The withholding of trade is ordinarily regarded as such a right.
Perhaps it is correct to say that international law standing by itself does not interfere with the freedom of the people of any single country to agree to withhold their trade from a particular foreign state.
But the question may not always remain so simple as that. The following matters may fall to be considered in this connection:
1. Whether the concerted action productive of non-intercourse (a) is attended with any acts of violence directed against
(i) the interest of the proscribed country.
(ii) the people of that country, or (in) the country itself.
(iii) is, in fact, the precursor of such acts of violence.
2 Whether the action in question is really inspired by the Government, making the boycott an instrument of governmental conduct.
3. Whether the movement in question was the action of the Government itself being its officially undertaken policy. If so, how far this action can be said to amount to a breach of the recognized norm of international law that a civilized state must give protection to the life, liberty and property of foreigners more or less in accordance with the liberal traditions of the “burger-liche Rechtsstaat”. (See, in this connection, the American Journal of International Law, Vol. 24, p. 517—The article on “Responsibility of States” by M. Borchard).
4. Whether the two countries stand in any special relation as a result of any treaty.
5. Under what circumstances and to what extent the proscribed country can have recourse to self-help to remedy the injury caused to it or to prevent any apprehended injury.
I shall further deal with this matter while dealing with Japan’s action in China.
It has been noticed above that the first act of Chinese boycott took place in 1905 and was directed against the United States of America. On that occasion the United States notified the Chinese Government that under the provisions of Article 15 of the treaty of 1858, it would be held responsible for any loss sustained by American trade on account of any failure on the part of China to stop “the present organized movement against the United States.” That movement, embracing the so-called boycott of American goods, and the printing by the native press of inflamatory articles against the United States,
was described by the American Minister as “a conspiracy in restraint of our trade carried on under official guidance and with the sympathy of the central Government.”
Japan too had acquired special treaty rights in China and a large number of her citizens had been in China under those treaty rights.
In these circumstances, the question certainly arises for our consideration what was the extent of Japan’s right to protect these interests and whether the boycott in question created any situation which would entitle Japan to exercise that right.
Hall says: “If the safety of a state is gravely and immediately threatened either by occurrences in another state, or aggression prepared there, WHICH THE GOVERNMENT OF THE LATTER IS UNABLE, OR PROFESSES ITSELF TO BE UNABLE TO PREVENT, or when there is an imminent certainty that such occurrences or aggression will take place if measures are not taken to forestall them, the circumstances may fairly be considered to be such as to place the right of self- preservation above the duty of respecting a freedom of action which must have become nominal, on the supposition that the state from which the danger comes is willing, if it can, to perform its international duties .... When a state grossly and patently violates international law in a matter of serious importance, it is competent to any state, or to the body of states, to hinder the wrong-doing from being accomplished, or to punish the wrongdoer .... Whatever may be the action appropriate to the case, it is open to every state to take it. International law being unprovided with the support of an organized authority, the work of police must be done by such members of the community of nations as are able to perform it. It is however for them to choose whether they will perform or not. ”
It is now well-settled that states possess a right of protecting their subjects abroad. I need not stop here to examine the extent of this right. It is evident that the legitimacy of action in any given case and the limits of right of action are essentially dependent on the particular facts of the case.
But apart from this question of justification, the evidence may establish a CONVINCING EXPLANATION of the occurrence otherwise than as a product of the alleged conspiracy.
I have hitherto considered the question in reference to the ACTUAL INTERNATIONAL RELATIONS of the present day. There is, however, this additional consideration in the present case.
We must not forget that in introducing criminal responsibility in international relations we are proceeding on the assumption that THE SOCIETY OF NATIONS HAS DEVELOPED INTO A COMMUNITY brought under the rule of law. As was pointed out by Professor Schwarzenberger, there is a fundamental difference between ‘a society' and ‘a community . The learned Professor defines 'a community’ as "a social group in which behaviour is based on the solidarity of members, a cohesive force without which the community cannot exist. ” He says:
“The criterion of solidarity is the decisive test in the classification of social groups, and if this bond is lacking, or is not strong enough to create the necessary cohesive force, the collective entity fulfils another function—the adjustment of diverging interests. This is the essential feature of a society. Whereas the members of a community are united in spite of their individual existence, the members of a society are isolated in spite of their association. Neither group could exist without a cohesive force and an interdependence between members. There is, however, a decisive difference between the ties created by a community and by a society—a difference which affects the nature of the law in those groups, as the law fulfils a completely different function in each of them.
“The law which regulates the life of a community such as a family or of an organization such as the Catholic Church, generally formalize only customary behaviour, which would be observed even without its existence; it defines the relations between members which the majority regards as substantially sound and adequate, and finds its main justification in its application to abnormal situations. It is the visible expression of common values and of relations which are as such a valid and binding reality for the greater part of the members.
“On the other hand, the law regulating the relations between the members of a society such as a joint stock company has to fulfil a different function. Its purpose is to prevent the Bellum omnium contra omnes, or to make limited co-operation possible between individuals who, being anxious to maintain and improve their own positions and seeking primarily their own advantage, are therefore at the best only prepared to apply in proportion to their actual power the principle of reciprocity in their relations with each other.”
I have already given my view of the character of international relations. In my opinion it is at best only a society in the sense as defined above by Prof. Schwarzenberger and as such does not admit of criminal responsibility. This is also substantially the view of Prof. Zimmern. Prof. Schwarzenberger quotes from a statement of Señor Don Salvador de Madariaga, an eminent authority on international relations, where, speaking of the existence of a world community, he says: “We have smuggled that truth into our store of spiritual thinking without preliminary discussion. We start with this preconceived idea or guess of our instinct that there exists a world community. ‘With the intellectual honesty which is one of his main characteristics, he adds the significant words: ‘We modems have not only immediately guessed or felt the world community, but begun actually to assert, create and manifest it, though we do not know yet what the world community is, what are its laws, what are its principles, nor how it is going to be built in our minds.’”
Whatever that be, as the entire basis of criminal responsibility in international relations is the assumption of the existence of international community in the above sense of the expression, the present question of the legality or otherwise of the boycott and of the rights and remedies of the proscribed country must be approached on this ASSUMED CHARACTER of the international relations.
During the age of discoveries, at any rate, the Powers asserted their claim to connect the newly discovered territories as ARIGHT derived from natural law and justified by the fiction of the territorium nullius,—territory . . inhabited by NATIVES whose community is not to be considered as a state. Whenever this principle could not be applied, the right of commerce with the non-European countries was asserted and this right was said gradually to have developed from an imperfect into a fundamental right.
No doubt, time and conditions of the world are very much changed since those days. But mere reference to such changes would not suffice to discard these precedents. We must examine the character of international society then existing and compare the same with our ASSUMED community of the present day. No doubt, as has been pointed out by Prof. Schwarzenberger, actual international relations here have fundamentally changed since then, but have changed for the worse.
But we are proceeding on a different assumption and we must consider the legal situation created by boycott on the footing of this assumed position of international relations.
On 27 February 1947 the prosecution objected to the extracts from the conference on the limitation of armaments at Washington being admitted in evidence in this case. Mr. Carr in making the objection observed that there must be some limit to the extent to which PRELIMINARY DISCUSSIONS can be taken as aids to interpreting an agreement finally signed. We over-ruled this objection and accepted the extracts as evidence.
When the question is one of construction of the agreement or of ascertainment of the intention of the parties, it must ordinarily be decided on a consideration of the contents of the documents themselves, with such extrinsic evidence of surrounding circumstances, as may be required to show in what manner the language of the document is related to existing fact. No evidence of any intention inconsistent with the plain meaning of the words used will be admitted, for the object is not to vary the language used, but merely to explain the sense in which the words are used by the parties.
The words of a written instrument may, to all appearance, appear to be free from ambiguity in themselves. Yet external circumstances may create some doubt or difficulty as to the proper application of the words. In such cases the question of construction .may admit of extrinsic evidence.
Whether it be ‘ the intention of the writer ’ or 'the meaning of the words’, the aim really is to ascertain the true nature of the transaction. Neither ‘intention’ nor meaning of the words can be the sole object. THE PRIMARY OBJECT is to determine what it was that was really intended and the PRIMARY SOURCE of
determining such intention is the language used in the deed.
THE ROLE OF PREPARATORY WORK in the interpretation of contracts in private law may be determined on the line indicated above. Yet its role in the interpretation of TREATIES may be quite different.
Professor Lauterpacht in his “les travaux preparatories” points out that in this respect the jurisprudence of the permanent Court of International Justice has gone through three phases: (1) a period during which it either took no account of such preparatory work, or positively rejected it; (2) a period during which it examined the evidence but found it unnecessary to make use of it; (3) the more recent period during which it has manifested a disposition to admit the utility of such evidence. On the whole the jurisprudence of the court has contributed little to the clarification of the subject.
As to the term ‘preparatory work’ it may include two kinds of materials: first, written acts reproducing the views of treaty negotiators, including the diplomatic correspondence preceding the conclusion of the treaty; and, second, the opinion of governments expressed before legislative assemblies.
As has been pointed out by Mr. Brown: “No rule of international law would seem more firmly established than this rule of interpretation of treaties in the light of intent of the negotiators, That intent naturally is assumed to be stated in the text of the treaty itself, but it also may be sought elsewhere, either in specific reservations attached to treaties at the time of signature or ratification, or in interpretations, clarifications, understandings, constructions, qualifications or actual conditions set forth during the negotiations prior to the ratification. Hence, it is to be expected that in any future divergence of opinions concerning THE NATURE OF THE OBLIGATIONS ASSUMED under the General Pact for the Renunciation of War recourse must necessarily be had, not only to the official correspondence of the negotiations, but to various official utterances of such government spokesmen as Sir Austen Chamberlain, M. Briand, Secretary Kellogg and Senator Borah. Their interpretations of this instrument will be entitled to the closest scrutiny and respect. So far as the commitments of the United States are concerned, the Report of the Senate Committee on Foreign Relations giving its understanding of the “true interpretation” of the Pact conditioning the American ratification must also be taken into account, whether by a judicial tribunal or by international public opinion . . . To make certain of the intent of every signatory to the Pact; to hold every signatory to the strict fulfilment of its commitments under that Pact, it would appear good sense and good ethics, as well as good law, to give due weight and credit to the interpretations placed on this momentous declaration by every signatory prior to ratification.”
THE DEFENSE OFTEN CHARGED US WITH INCONSISTENCY in our rulings on the question of admissibility of evidence in this case. At least some of the rulings referred to above would appear to justify such a charge. There were a few more instances also like the following:
On 26 June 1946 in cross-examining a prosecution witness, the defense asked him a question from a prosecution document which had not yet been introduced into evidence. The document was not a statement of the witness. Objection was made by the prosecution to the use of the document without it being introduced into evidence. This objection was upheld and the defense was not allowed to use the document for the purpose, (proc. page 1,429).
On June 29, 1946 the defense, in cross-examining a prosecution witness, asked him a question with respect to a certain document. Objection was taken by the prosecution that the document could not be used unless served on the prosecution twenty-four hours in advance and processed. This objection was also upheld by us and the defense was not allowed to use it (p. 1, 368 to 1,371; June 29, 1946).
Subsequently, however, on March 5, 1947 when prosecution offered to do the same thing in course of cross-examining the defense witnesses, we departed from this rule and announced that the rule as to processing and serving a copy of the document in advance did not apply in such cases, the very essence of cross-examination being the element of surprise, (p. 17, 808-12) . Thus, we could not therefore disown our inconsistency in this respect; but we had a very good explanation as was pointed out by the President.
The President said: “. . . I am not here to offer any apology on behalf of the Tribunal, but as you know the Charter says we are not bound by any technical rules of evidence. That not merely prevents us from following our own technical rules—we could hardly do that because there are eleven nations represented and in some particulars they all differ in these technical rules— but it has the effect of preventing us from substituting any other body of technical rules of our own. All we can do on each piece of evidence as it is presented is to say whether or not it has probative value, and the decision on that question may depend on the constitution of the court. Sometimes we have eleven members; sometimes we have had a low as seven. And you cannot say, I cannot say, that on the question of whether any particular piece of evidence has probative value you always get the same decision from seven judges as you would get from eleven. I know that you would not .... You cannot be sure what decision the court is going to come to on any particular piece of evidence—not absolutely sure—because the constitution of the court would vary from day to day and I would be deceiving you if I said decisions did not turn on how the court was constituted from time to time. They do. On the other day in court on an important point I know the decision would have been different if a Judge who was not here was present. How are we to overcome that. We cannot lay down technical rules. We might spend months in trying to agree upon them and then fail to reach an agreement. The Charter does not allow us to adopt them in any event. It is contrary to the spirit of the Charter. The decision of the Court will vary with its constitution from day to day. There is no way of overcoming it.”
Lord Eldon once said: “This inconvenience belongs to the administration of justice, that the minds of different men will differ upon the result of the evidence, which may lead to different decisions on the same cause. ” It seems this further inconvenience also belongs to the administration of justice, that “it is impossible to reduce men’s minds to the same standard, as it is to bring their bodies to the same dimensions.”
Coming now to the facts of the case we must remember how the prosecution presented to us what it characterized to be the structure of the entire case taken as a whole irrespective of its relation to each individual accused. I have already given a rough idea of this structure.
The prosecution itself gave us a summary in its reply to defense motions for dismissal of the case. In my opinion that summary gives the structure fairly accurately.
Counts 1 to 5 contain the charges of conspiracies. In Count 1 the prosecution alleges a general over-all conspiracy “covering not only the whole period but also all the various phases which subsequently developed although their details might not in the beginning have been foreseen.” According to this Count these “accused . . . participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy ...” the object of such plan or conspiracy being the securing by waging declared or undeclared war or wars of aggression etc. of “the military, naval, political and economic domination of East Asia and of the Pacific and Indian Oceans and of all countries bordering thereon and islands therein.”
Counts 2 to 5 charge that the defendants entered into similar unlawful conspiracies having, as their object, similar domination, by similar unlawful aggressive means, of
(1) that part of the Republic of China commonly known as Manchuria (Count2);
(2) the rest of the Republic of China (Count3);
(3) the whole of East Asia and of the Pacific and Indian Oceans etc. against the United States, British Commonwealth, France, Netherlands, China, Portugal, Thailand, Philippines and the Soviet Union (Count 4); and
(4) the whole world (Count 5).
Counts six to seventeen inclusive, allege that all of the defendants PLANNED AND PREPARED the wars of aggression and wars in violation of international law, treaties, etc. against various nations separately named in each count, and including, in addition to the nations engaged in this prosecution, the Kingdom of Thailand.
All of the defendants are named in each of the seventeen counts above enumerated.
Counts eighteen to twenty-six, inclusive, allege that certain of the defendants INITIATED wars of aggression and wars in violation of international law, treaties, etc., against China, United States, Philippines, British Commonwealth, France, Thailand, Soviet Union and the Mongolian Peoples Republic.
Counts twenty-seven to thirty-six, inclusive, charge the defendants with WAGING wars of aggression and wars in violation of international law, treaties, etc.
All of these, except 33, 35 and 36, name all of the defendants. Count thirty-three alleging the waging of war against France, Count thirty-five alleging the waging of war against the Soviet Union, and Count thirty-six alleging the waging of war against the Mongolian Peoples Republic and the Soviet Union, do not include certain defendants.
Counts thirty-seven and thirty-eight allege that the defendants named therein conspired together TO MURDER any and all such persons, both military and civilian, as might be present at the place attacked in the course of initiation of unlawful hostilities against the United States, Philippines, British Commonwealth, Netherlands and Thailand.
Counts thirty-nine to forty-three, inclusive, charge specific MURDERS at specified places, including Pearl Harbour, Kota Bahru, Hongkong and the attack on the H.M.S. PETEREL at Shanghai, and at Davao in the Philippines, in which many persons were murdered.
Count forty-four alleges that all of the defendants participated in A CONSPIRACY FOR THE MURDER OF PRISONERS OF WAR and civilians on land and at sea.
Counts forty-five to fifty, inclusive, allege SPECIFIC ACTS OF MURDER against defendants named therein at various places in the Republic of China.
Counts fifty-one and fifty-two allege that the defendants mentioned therein MURDERED MEMBERS of the armed forces of the Mongolian and Soviet Republics .
Count fifty-three alleges that certain named defendants CONSPIRED TO commit breaches of the law and customs of war in respect of the treatment of prisoners of war and civilian internees.
Count fifty-four alleges that certain named defendants ORDERED, AUTHORIZED AND PERMITTED such offenses.
Count fifty-five alleges that certain named defendants DELIBERATELY AND RECKLESSLY DISREGARDED THEIR LEGAL DUTY to take adequate steps to prevent such breaches and thereby violated the laws of war.
In establishing this case the prosecution relied on what it characterized as the “well recognized conspiracy method of proof”. The prosecution undertook to prove:
1. That an over-all conspiracy of a comprehensive character and of a continuing nature was formed, existed and operated during the period from January 1, 1928 to September 2, 1945.
2. That the object and purpose of the said conspiracy consisted in the complete domination by Japan of all the territories described in the indictment and generally known as Greater East Asia.
3. That it was the design to secure such domination by wars of aggression and in violation of international law and treaties.
4. That the defendants were members of the conspiracy at the time the specific crime set forth in any Count was committed.
According to the prosecution, in view of the adoption of the “conspiracy method of proof’ it became unnecessary for it to do more than examining and determining the two following questions:
“1. Has a general and continuing conspiracy of the character and scope set forth in Count 1 of the indictment been established?”
“2. As to any particular defendant, was he a member of the conspiracy at the time the specific crime set forth in any count, (other than a conspiracy count) was committed?”
In approaching the evidence in relation to this conspiracy the prosecution invites us to remember:
1. That in the development of a vast conspiracy of this nature there was necessarily from time to time a choice open as to the particular direction in which the advance should be pressed at a particular time or at all, and therefore, as to how many and which countries should be attacked. This choice may have depended on opinion as to the desirability of an attack upon any particular country, or more often only as to its prudence.
2. That one of the difficulties in relation to the analysis of this conspiracy is that it was of such a breadth of scope that it is difficult to conceive of it being undertaken by a group of human beings.
3. That it is of vital importance in this proceeding to grasp the significance of the fact that none of the events which took place during this fourteen year period occurred by accident.
(a) Every event was coldly calculated, planned for and put into execution.
4. That though the accused from time to time differed among themselves, at no time during the entire course of the conspiracy did any of the accused differ with the others on the fundamental object of the conspiracy itself.
(a) All of the conflicts were based solely on a difference among the accused as to whether certain action being contemplated at a particular moment was properly timed.
Referring to the vastness of the conspiracy charged, Mr. YAMAOKA for the defense made the following pertinent observations:
“The alleged conspiracy which the prosecution has attempted to trace and describe is one of the most curious and unbelievable things ever sought to be drawn in a judicial proceeding. A long series of isolated and disconnected events covering a period of at least fourteen years are marshalled together in hodgepodge fashion; and out of this conglomeration the prosecution asks the Tribunal to find beyond all reasonable doubt that a “common plan or conspiracy” existed to accomplish the objectives stated in the indictment, although the prosecution, as is shown by their argument, has been hard put to it even to point out an outline of any such common plan or conspiracy Men like DOHIHARA, HASHIMOTO, HATA, HOSHINO, ITAGAKI, KIMURA, KOISO, MUTO, OKA, OSHIMA, SATO, SHIMADA, SUZUKI and TOJO, UMEZU and others had no opportunity to come into contact with HIROTA during the days he occupied the Foreign Ministership and Premiership; and, of course, HIROTA had no opportunity to know any views entertained by those men or views entertained by most of the men indicated with him in this case.”
Mr. YAMAOKA continued: “As all the larger powers in the world naturally desire to expand their foreign trade in order to maintain or increase the prosperity of their own people and at the same time concurrently take appropriate measures to insure the means for self-defense for themselves, it is easy to see that had the method pursued here by the prosecution of marshalling together hundreds of isolated and disconnected facts been applied to the activities over a similar period of other powers, every major nation in the world could be adjudged guilty of preparing for and waging wars of “aggression”, although from their own nationalistic point of view and intention there was no such purpose.”
The simple enormity of the charge certainly would not have any persuasive effect on us. If it is difficult “to conceive of the thing alleged as being undertaken by a group of human beings”, it is all the more reason why we should not allow ourselves to be readily persuaded to its having been undertaken by this group of accused before us. Belief, no doubt, is purely mental, and probability belongs wholly to the mind. But we must remember that our belief would approximate a correct representation of the actual fact only if the data for that fact have fully entered into the mental formation of that belief.
At least on an occasion like the present, we cannot entertain our mind with the pleasure which it is apt to take in readily adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole. This is specially so, when no direct evidence of the fact to be proved could be presented to us, and, the presented facts, by inference from which we are invited to conclude the enormous conspiracy, mosdy admit of a plurality of causes. We may not even ignore the possibility of unknown antecedents.
In view of the most comprehensive character of the conspiracy alleged in Count 1, the prosecution contends that if that conspiracy is found to have been proved and if it be found that each of the accused either was a party to it from the beginning or joined it later it may be unnecessary to consider separately Counts 2 to 5.
In case Count 1 is found as “not proved as a whole” it will then be necessary to consider each of those other counts separately against all the accused.
If Count 1 is found “proved as a whole ” “but one or more of the accused is not proved to have participated to that extent”, “it would then be necessary to consider whether he did participate ... in one or more of the conspiracies charged in Counts 2 to 5.”
In the submission of the prosecution “a man who joins the conspiracy late may adopt the fruits of that conspiracy as he finds them and thereby approve after the event a policy which he did not support at that time.”
At the same time we have the following assurances given by the Prosecution:
(a) That each and every defendant is charged with the crimes . . .
solely because of the responsibility he bears for his contribution to the formulation in whole or in part, of Japan’s aggressive policy.
(b) (i) That no man has been charged with either crimes against peace or Conventional War Crimes and crimes against humanity unless he is in some way responsible for the aggressive policy followed by Japan, which gave rise to those crimes.
(i) That no man has been charged in this proceeding because of any act committed or any statement made by him in the course of his official duties pursuant to an already established policy if those matters were his only connection with that aggressive policy.
(in) No military man in the field, for example, is charged . . . merely because he carried out military operations .... They are charged because of their activity in instigating . . . and in bringing about the adoption of the program of aggression.
The Prosecution then urged as propositions of law:
1. That the wars of aggression and in violation of international law, treaties, etc. , being illegal and unjustifiable, any killing in initiating and waging such wars amounted to murder.
2. That any and all persons who were members of the over-all conspiracy above described, became individually and severally criminally responsible and liable for each and every act committed in the course of the conspiracy:
(a) Whether that act be the unlawful planning, initiating or waging of war.
(b) Whether it be a murder as indicated above.
(c) Whether it be any other atrocity in violation of law committed in the course of the carrying out of the conspiracy.
3. That any defendant who was a member of the conspiracy at the time any specific act charged in any Countwas committed is guilty of the crime which the acts constitute, irrespective of the question whether he personally participated therein or not.
(a) “That if a man joins a conspiracy of the kind alleged in Count 1, he necessarily leaves the matters like that of deciding upon or directing any particular advance, at any particular time, to be determined by those of his fellow conspirators, who would, from time to time, be in power: “A man who has once joined the conspiracy cannot therefore absolve himself from responsibility for the subsequent actions of his co-conspirators merely by showing that he was not personally in favour of a particular action which they took, specially if his opposition was based on merely prudential grounds, provided that action was within the scope of the original conspiracy, and he did not definitely dissociate himself from it.”
(b) Once two or more persons have agreed to commit a crime, each of them is responsible for all subsequent acts and words of the others done or uttered within the scope and for the purposes of that agreement, and if the crime is actually committed by any of them, all can be convicted of it.
(i) Where the agreement is that if in the course of pursuing an object, which may or may not itself be a crime, certain circumstances arise, a crime or further crime shall then be committed and in those circumstances it is then committed in accordance with the agreement by one of them, all can be convicted of that crime or further crime and each is bound by the decision of the others as to whether it should actually be committed or not.
(ii) Equally, if they plan or set out to achieve an object which is not in itself a crime and agree that if necessary for that purpose a certain crime shall be committed, and one of them does commit it, all can be convicted of it.
(c) (i) If any one having entered into the conspiracy and having taken part in the preparation for committing the offenses alleged, be out of office when the actual offense is committed, he is not exonerated from liability: The mere fact of his inability, because of his loss of office, to take part in the final decision to commit that offense cannot absolve him, provided it is within the class of offenses which he had agreed to commit: He must be taken to have delegated to his successors, in the direction of the conspiracy, the choice of action.
(d) If, being still in office, he objected to the act in question, or, even strove to prevent it or stop it, but ultimately allowed his scruples to be overruled and continued in office, he is liable for the act.
The propositions of law, thus enunciated by the prosecution, certainly raise very grave questions for national societies of the so-called International Community. They involve unprecedented risk and responsibility on the part of those who might be called upon to work the machinery of their own national governments. The enormity of the risk will, I believe, be adequately appreciated only if we remember that for the alleged behaviour they are to be answerable to international authorities, whoever they be. Keeping in view the character of the present-day international life, these propositions must be very carefully examined and, in so doing, we must keep distinct THE FOLLOWING TWO CONSIDERATIONS: (1) the ripeness of conditions for their transposition into rules of law in international life; (2) the method to be followed to effect this transposition.
I shall examine what the Prosecution presented to us as “the law of conspiracy and cognate doctrines” after considering the facts relating to the charge of conspiracy, and in that connection shall consider in detail the above propositions of law enunciated by the prosecution. In the meantime, I should only point out that the legal aspect of these charges of conspiracy is presented by the prosecution from THE FOLLOWING VIEW-POINTS:
1. The jurisdiction of this tribunal being limited to the offenses listed in the Charter constituting it, the charges in this case must be confined only to the cases provided in Articles 5(a) and 5 (c) of the Charter.
(a) The charges are thus confined to:
(i) a common plan or conspiracy for the accomplishment of “the planning, preparation, initiation or waging of declared or undeclared war of aggression etc. ”: (Article 2
(i) a common plan or conspiracy to commit what is named in the Charter as a crime against humanity: (Article 5).
(b) The allegations of any common plan or conspiracy to commit conventional war crimes are given up.
3. It is the submission of the prosecution:
(a) That the Charter is conclusive as to the composition and jurisdiction of the Tribunal and as to all matters of evidence and procedure.
(b) That AS TO THE CRIMES LISTED in Article 5,
(i) The Charter is and purports to be MERELY declaratory of international law as it existed from at least 1928 onwards ....
(ii) The Tribunal is to examine this proposition and to base its judgment on its own decision in this respect.
(iii) “THE PROVISIONS OF THE CHARTER with regard to conspiracy, planning, preparation, accessories and the common responsibility of those engaged in a common plan REPRESENT THE GENERAL PRINCIPLES OF LAW RECOGNIZED BY ALL CIVILIZED NATIONS”.
(a) “The general principles of law recognized by civilized nations” being one of the sources of international law, these provisions are themselves part of international law.
4. The provisions in the Charter are merely FORMS of charge and of proof of responsibility:
(a) As such “these are within the power of the Supreme Commander TO LAY DOWN ”.
5. There is an important distinction between conspiracy as a separate crime, and conspiracy as the METHOD OF PROOF of a crime alleged to have been committed by several persons jointly.
(a) That principles are similar but the application of them is different.
(b) These principles are applied to a joint crime, even if it is not one, the conspiracy to commit which, is a separate crime. The prosecution offered to accept the law in this respect to be as expounded in the Nuremberg judgment. namely,
(i) that the conspiracy must be clearly outlined in its criminal purpose.
(ii) that it must not be too far removed from the time of decision and action.
(iii) that the planning to be criminal must not rest merely on the declaration of party program.
(iv) that there must be a concrete plan to wage war of the kind characterized as aggressive.
Mr. Brannon for the defense assailed the above propositions of law and laid stress on the factual differences between the Nuremberg case and the present in this respect. His criticism was levelled against each one of the prosecution approaches as specified above. These would indeed require close scrutiny. But I should proceed to examine the facts first.
In order to establish the existence of the conspiracy alleged in the indictment the prosecution offered to prove the common design and contended that once the common design was established, all the evidence, regardless of how disconnected it might seem to be, or regardless of how disconnected the actions of the various defendants might seem, would fall easily into its proper and logical sequence.
The common design or object of the conspiracy is given in Count 1 to be:
1. That Japan should secure the military, naval, political and economic domination of
(a) East Asia.
(b) The Pacific and Indian Oceans.
(c) All countries bordering thereon and islands therein.
2. That for that purpose Japan should wage
(a) declared or undeclared war.
(b) wars of aggression.
(c) wars in violation of:
(i) international law.
(iii) agreements and assurances.
As has been stated above, Counts 2 to 5 also relate to charges of conspiracy, each in respect of a particular territory. In them, the object of the conspiracy is given to be (1) to secure . . - domination of the territories named therein and (2) for that purpose to wage wars of the character stated above in connection with Count 1. The method of such domination is alleged to be “either directly or by establishing a separate state under the control of Japan.”
Count 1 does not specify any date on which such conspiracy was formed. The date is given as “between 1st January 1928 and 2nd September 1945”.
As I understand the prosecution case, its contention is that the alleged conspiracy was entered into at some date prior to this period and that it existed and continued to exist during the entire specified period. This must be so. Otherwise the acts of different dates of this period cannot all be caught in the net of the alleged conspiracy.
The Prosecution summation supports this view in claiming the murder of Chang Tso-Lin as being “ the first overt act in the conspiracy to carry out the objective of the conspiracy”.
The Prosecution offered to establish the fact of conspiracy by direct and circumstantial evidence, including the conduct and declarations of the accused and their accomplices.
The prosecution contention is that in order to establish this fact “the prosecution is not required to prove the specific date of its inception so long as the proof establishes as a fact that the conspiracy charged existed within the dates specified in the indictment.”
In its opening statement the prosecution proposed to establish and now claims to have established the following materials which, according to it, would evidence the factum probandum, (the over-all conspiracy):
1. That for years prior to January 1, 1928, the military in Japan had sponsored, organized and put into effect in the public-school system of Japan program designed to instil a militaristic spirit in the youth of Japan and to cultivate the ultra-nationalistic concept that the future progress of Japan was dependent upon wars of conquest.
(a) That as a result of her previous aggressive policy, Japan had acquired vast interests and privileges in China, particularly in that part known as Manchuria.
(b) That by the special treaties Japan had acquired large areas in Manchuria in which she exercised extra territorial powers.
(i) That in 1927 the Japanese Government formulated a positive policy toward China which resulted in sending troops to China in May 1927 and in April 1928.
(ii) That political writers and speakers advocated public support of military action in Manchuria.
(iii) That a plan was developed for the creation of an incident in Manchuria which would supply a basis for military aggression there. This plan also included the exertion of coercive methods in bringing the Japanese Government into accord with military aims and purposes in Manchuria.
(iv) That on September 18, 1931, a provocative occurrence which has come to be known as 'the Mukden incident’ was planned and executed.
(v) That it was followed by immediate military aggression well prepared and on the alert for the occasion, resulting in the occupation of the three north-eastern provinces of China and ultimately in the setting up of a puppet regime there.
(vi) That the real purpose of this invasion was the acquisition of proprietary interest in Manchuria.
(a) That Japan, through these accused, gradually extended her aggression to other parts of China.
(b) That throughout, the pattern and design conformed to one simple plan, though the details varied from time to time.
(a) That the waging of aggressive warfare against China was aided and facilitated by military groups acting in concert with civilians in securing control of overnmental departments and agencies.
(b)That the power involved in the Imperial Ordinance of 1936 providing that the Minister of War must be a General or Lt. General on the active list and that the Minister of Navy must be an admiral or vice-admiral on the active list, was utilized by the Army in obtaining domination and control of the Government and promoting Japan’s policy of expansion by force.
(c) That taking advantage of the express provisions of the Japanese Constitution making a sharp distinction between matters of general affairs of state and matters pertaining to the Supreme Command under the Army and Navy, the conspirators, throughout the life of the conspiracy, constantly tended to enlarge the scope of matters contained within the concept of Supreme Command at the expense of matters belonging to general affairs of state.
(d) That militaristic cliques and ultra-nationalistic secret societies resorted to rule by assassination and thereby exercised great influence in favour of military aggression.
(i) That assassinations and threats of revolt enabled the military branch more and more to dominate the civil government until on October 1941, the military acquired complete and full control of all branches of the Government, both civil and military.
(ii That the military hierarchy caused the fall of the Yonai Cabinet in July 1940, in order to advance aggressive objects:
5. That determination on the part of Japan and those responsible for Japanese policy to continue the program of expansion by force would be evidenced by
(a) Withdrawal of Japan from the League of Nations.
(b) Decision not to adhere to the London Naval Treaty.
(c) Refusal to attend the Nine-Power Treaty conference at Brussels.
(d) fortification of mandated islands in violation of the trust under which she obtained them.
(a) That before committing herself to extensive military aggression against China in 1937, Japan sought and obtained an alliance with Germany on 25 November 1936 (Anti-Comintern Pact) and entered into a secret treaty with Germany; (b) That in order to enable her to further aggression, Japan concluded the Tripartite Treaty with Germany and Italy on 20 September 1940.
7. That from the early days of conspiracy Japan had determined to wage war against the United States for the purpose of executing her Greater East Asia Policy.
8. That the ten years of planning and preparation along with the period of initiation and waging of war would evidence the details of the conspiracy.
9. That the pattern adopted or accepted by the accused leaders in waging the war was the same as that followed by their fellow-conspirators, the Nazi Germans.
According to the Prosecution the facts stated above have been proved in this case and they go to establish the conspiracy alleged in counts 1 to 5 and show that the said conspiracy WAS A CONTINUING ONE THROUGHOUT THE SPECIFIED PERIOD.
As TO THE PARTIES TO THIS CONSPIRACY Mr. Keenan in his opening statement submitted that the proof relating to the factum of conspiracy and the matters and things set forth in the various appendices to the indictment will establish that these accused participated with others in the common plan and conspiracy and were the major leaders responsible for the formulation and execution of the conspiracy charged.
In the indictment, “the whole of the particulars in the Appendix A, of the Treaty Articles in Appendix B, and of the Assurances in Appendix C”, are stated as relating to these counts.
Appendix A is divided into ten sections giving summarized particulars showing the principal matters and events upon which the prosecution proposed to rely in support of the charges laid in the several counts of the indictment in group one.
The heads of the particulars are:
1. Military aggression in Manchuria.
2. Military aggression in the rest of China.
3. Economic aggression in China and Greater East Asia.
4. Methods of corruption and coercion in China and other occupied territories.
5. General preparation for war.
6. The organization of Japanese Politics and public opinion for war.
7. Collaboration between Japan, Germany and Italy. Aggression against French Indo-China and Thailand.
8. Aggression against Soviet Union.
9. Japan, the United States of America, the Commonwealth of the Philippines and the British Commonwealth of Nations.
10. Japan, the Kingdom of the Netherlands and the Republic of Portugal.
Different counsel for the prosecution opened the case involved in different sections of this Appendix. Almost every one of them said something about this conspiracy and tried to connect his phase of the case with the over-all conspiracy alleged in Count 1. These opening statements would throw considerable light on THE PROSECUTION APPROACH of the case though all the learned counsel could not always avoid inflamatory and oratorical expressions and emotionalized generalities.
The defense, of course, disputed this charge of conspiracy, and characterized it as a fantastic one.
Different counsels for the defense summed up the cases on the different phases. Of these I would specially mention in this connection the summations on head 1 of Appendix A of the Indictment by Mr. OKAMOTO and Mr. Brooks, heads 2, 3, and 4 by Mr. Lazarus, head 5 by Messrs Blewett and Brannon, head 7 by Mr. Cunningham, head 8 by Major Blakeney as also by Major Furness and head 9 by Mr. Logan and Major Blakeney.
I would, first of all, proceed to see how far the evidence on record goes to establish the over-all conspiracy as alleged in the indictment.
As has been claimed by the prosecution, the existence of the over-all conspiracy as alleged in Count 1 is indeed “the basic matter of transcendent importance in this case.” While considering the defense objection relating to the jurisdiction of the Tribunal, I have already expressed my view that the crimes triable by this Tribunal must be limited to those committed in or in connection with the hostility or hostilities which ended in the surrender of the 2nd September 1945. The Manchurian Incident of 1931, the subsequent activities of Japan in the provinces of Liaoning, Kirin, Heilungkiang and Jehol, the hostilities between Japan and China prior to the Marco Polo Bridge Incident of 1937, the armed conflicts between Japan and the U. S. S. R. relating to the Lake Khasan Affairs, and the Khalkhingol River Affairs, and the Ladybird and the Panay Incidents should all fall outside the jurisdiction of the Tribunal unless they can be caught within this widely spread net of over-all conspiracy. According to the defense, unless caught within this net, even the hostilities in China between the period from the Marco Polo Bridge Incident of 1937 and the formal declaration of war by China on 9-12-41 and the alleged aggressions in Thailand, French Indo-China and the Mongolian People’s Republic would also be beyond our jurisdiction. I shall consider these questions in their appropriate places.
In its summation, the prosecution offered an analysis of this conspiracy in four successive steps, namely:
1. “Obtaining control of Manchuria”.
2. “The expansion of control and domination from Manchuria to all the rest of China”.
3. “The preparation of Japan for aggressive war internally and by alliance with the Axis Powers”.
4. “The further expansion of the conspiracy into the rest of East Asia and the Pacific and Indian Oceans by further aggressive wars.”
I shall try to follow this division of steps in my examination of the evidence.
While considering the evidence adduced in this case on this matter we should remember:
1. That the fact to be proved is the existence of the conspiracy as asserted in the indictment.
(a) That though in its opening statement the Prosecution spoke about direct evidence, ultimately it did not claim to have given any direct evidence of this conspiracy. As a matter of fact, there is no such direct evidence on the record:
(b) That the prosecution seeks to prove certain incidents and occurrences and invites us to draw the inference therefrom that there had been the conspiracy as alleged in Count 1, and that all these incidents and occurrences were results of that conspiracy.
3. That the several incidents and occurrences about which evidence has been adduced have two-fold significance:
(a) if established, they may, by themselves, constitute some offense. In this respect they are the several principle matters for proof in this case; for our present purposes we may ignore this aspect.
(b) when established, they would establish some evidentiary fact purporting to evidence the ultimate proposition, viz., the existence of the conspiracy. For my present purpose, the evidence relating to such matters must be approached only from this point of view.
4. Consequently it will always be a pertinent enquiry to ask:
(a) if the evidence establishes the incident or the occurrence as a matter of fact.
(b) if so, whether the incident or occurrence in question can be explained away from the proposed inference of conspiracy. If there is any other good and sufficient EXPLANATION of the occurrence, it fails as an evidentiary fact so far as our present probandum is concerned. It should be remembered that this explanation need not JUSTIFY the Japanese action in connection with the incident. The question of such justification would arise only in relation to item 3(a) above.
OBTAINING CONTROL OF MANCHURIA
I would now take up what the prosecution names as “obtaining control of Manchuria” and characterizes as the first step in the conspiracy.
The materials or elements which, according to the Prosecution, would help the construction of the required body of evidence and were available for the purpose, have been placed before us. In its summation the Posecution tried to put these materials together and attempted to arrange them as far as possible, in their proper places, in the relative positions which they are alleged to have occupied or are reasonably supposed to have occupied in the alleged actual case as, according to the prosecution, it occurred. We have thus been offered a framework of facts, arranged in certain positions of alleged relation to the ultimate fact sought. It is for us to see to what extent these materials are really connected with each other and with the alleged over-all conspiracy: It is for us to examine their separate and united significance.
The fact to be proved is a conspiracy of an enormous magnitude as alleged in Count 1 of the Indictment. The materials presented relate to so many ‘plots’, ‘conspiracies’ and sinister incidents that our mind may easily be preoccupied by a tendency to believe in the inter-relation between these several plots and the ultimate master-plot. As I have already observed, we cannot entertain our mind with this pleasure, which it is apt to take in readily adapting circumstances to one another. We must avoid all eagerness to accept as real anything that may lie in the direction of our unconscious wishes, or that comes dangerously near to the aim of the impulses.
Let us have the prosecution reconstruction of the conspiracy as attempted through its summation.
The prosecution starts with the murder of Chang Tso-lin which event took place on June 3, 1928. The prosecution claims this to be the “first overt act in the conspiracy to carry out the objective of the conspiracy”, and asserts that “it was the first overt act by the Army to project itself into the formulation of Government policy.”
Referring to this incident the Lytton Commission reported: “The responsibility for this murder has never been established. The tragedy remains shrouded in mystery, but the suspicion of Japanese complicity to which it gave rise became an additional factor in the state of tension which Sino-Japanese relation had already reached by that time.”
The prosecution claims that it has succeeded in adducing additional evidence in the case before us to clear up the mystery and establish as a fact that it was the doing of the Japanese and that it was done “to carry out the objective of the conspiracy” as charged in Counts 1 and 2.
We shall have to examine this evidence to see the following:
1. Whether what was shrouded in mystery according to the Lytton Report has now been cleared up and Japan’s complicity clearly established.
2. Assuming that it has been so established, what evidence is there to connect this incident in any way with any larger conspiracy as asserted by the prosecution.
The second is indeed an essential link in the whole chain. For, this incident seeks to introduce TATEKAWA as a conspirator, and, his connection with the Mukden Incident is resorted to, in order to establish the conspiratorial character of that incident as also to locate the conspiratorial group.
The prosecution next places the following facts in the chain:
1. The fall of the TANAKA Cabinet in July 1929 and the accession of the HAMAGUGHI Cabinet with the revival of the friendship policy.
2. The organization of Sakura-Kai in October 1930.
3. Attempts on the part of the conspirators, who were hitherto outside the duly established Government of Japan, to seize the Government.
(a) One such effort being the March Incident of 1931.
(b) Another, the attempted assassination of Premier HAMAGUCHI.
(c) Fall of HAMAGUCHI Cabinet and accession of WAKATSUKI Cabinet on the 14th April 1931.
4. The Mukden Incident of September 18, 1931.
(a) The Lytton Commission left the authorship of this incident unsolved.
(b) Additional evidence has been adduced in this case to remove this doubt and establish that it was the result of a plot by the Kwantung Army.
(c) That this plot was also a part of the master conspiracy.
5. Further attempts to seize the Government being the October Incident of 1931.
6. The fall of WAKATSUKI Cabinet in December 10, 1931 and the accession of the INUKAI Cabinet.
7. The conquest of Manchuria and establishment of a puppet government there.
We shall take up these several matters one by one and examine to what extent they have been established by the evidence adduced and how far they lead to the alleged master conspiracy.
The most important evidence in this phase of the case is the Lytton Commission Report which is Exhibit 57 in this case. Both parties relied largely on this report; but both parties sought to supplement the same with additional evidence. Before proceeding to consider the items specified above, I would prefer to deal with this Lytton Commission Report first. Indeed this is the basic document on this phase of the case and, it must be admitted, is a very valuable document for our purposes. In its analysis of the conspiracy in this step the prosecution mainly relied on this document.
A careful scrutiny of this report is essential in order to appreciate the real character of the events that happened and the legal position of the parties in relation thereto in international life.
After a very careful review of the facts and circumstances of the case the Commission dismissed the past with this final reflection: “it must be apparent to every reader of the preceding chapters that the issues invofved in this conflict are not as simple as they are often represented to be. They are, on the contrary, exceedingly complicated, and only an intimate knowledge of all the facts, as well as their historical background, should entitle anyone to express a definite opinion upon them. This is not a case in which one country has declared war on another country without previously exhausting the opportunities for conciliation provided in the Covenant of the League of Nations. Neither is it a simple case of the violation of the frontier of one country by the armed forces of a neighbouring country, because in Manchuria there are many features without an exact parallel in other parts of the world.”
The Commission went on to say: “The dispute has arisen between two states, both Members of the League, CONCERNING A TERRITORY the size of France and Germany combined, in which both claim to have rights and interests, only some of which are clearly defined by international law; a TERRITORY which, although legally an integral part of China, HAD A SUFFICIENTLY AUTONOMOUS CHARACTER to carry on direct negotiations with Japan on the matters which lay at the root of this conflict. ”
These final reflections of the Commission, if properly appreciated, should, according to the defense, suffice to dispel the present charge of CRIME.
The actual steps taken by Japan were certainly in apparent violation of the obligations of the Covenant of the League of Nations, the Kellogg-Briand Pact and the Nine-Power Treaty of Washington. Japan claimed in justification that all the military operations had been legitimate acts of self-defense, the right of which was implicit in all the multilateral treaties mentioned above, and was not taken away by any of the resolutions of the Council of the League.
Besides an introduction covering eight pages, giving an account of the proceedings resulting in the appointment of the Commission and an appendix covering nine pages containing Itinerary in the Far East of the League of Nations Commission of Enquiry, the report consists of one hundred twenty-seven pages from page thirteen to page one hundred thirty-nine, both inclusive, and is divided into ten chapters.
The Commission spent about six months in the Far East interrogating members of the Government, leaders in business and finance and representatives of various organizations in China and Japan. Information was received through neutral technical advisers and a mass of documentary evidence accumulated . The main portion of the report is devoted to a narrative and appreciation of past events and conditions resulting from the political and economic development of Manchuria. The report outlines the development in China since the Revolution of 1911 and the differing principles and policies adopted by China and Japan respectively in intercourse with western nations. The actions of the various western members of the international society in respect of the Chinese Territory are justified as being almost inevitable, being the inevitable reasonable consequences of the failure on the part of the Chinese sovereign to exercise full territorial sovereignty therein in special relation to the safe-guarding of alien life and property according to the western standard. The increasing importance of Manchuria as an economic entity is described in connection with the geographical, political and economic conditions affecting the relations of Manchuria with China, Japan and Russia. The report deals with the successive changes in the Government of Manchuria due to the Sino-Japanese War of 1894-95 and Russo-Japanese war ten years later, both of which were fought to a great extent on Manchurian Territory. The various negotiations and treaties are outlined, leading to the very complicated status of the different zones of Manchuria as they existed prior to events of September, 1931. Attention is also given to the various incidents, such as the Korean riots and the killing of Captain Nakamura, which may be taken as preludes to the seizure of Mukden. An entire chapter (Chapter IV) is devoted to the military events in Manchuria on and subsequent to September 18.
The report was signed by the members of the Commission on September 4, 1932.
I give below the few relevant salient facts FOUND AND RECORDED by the Commission:
1. THE EVENTS OF SEPTEMBER 18, 1931, which first brought the present conflict to the notice of the League of Nations, were but the outcome of a long chain of minor occasions of frictions, indicating a growing tension in the relation between China and Japan.
2. The nationalist aspirations of the Republic of China, the expansionist policy of the Japanese Empire and of the former Russian Empire, the present dissemination of Communism from the U. S. S.R., the economic and strategic needs of these three countries: Such matters as these, for example, are factors of fundamental importance in any study of the Manchurian Problem.
3. The dominating factor in China is the modernization of the nation itself which is slowly taking place.
4. China today is a nation in evolution showing evidence of transition in all aspects of its national life. Political upheavals, civil wars, social and economic unrest, with the resulting WEAKNESS OF THE CENTRAL GOVERNMENT, have been the characteristics of China since the Revolution of 1911.
(а) Those conditions have adversely affected all the nations with which China has been brought into contact and, until remedied, will continue A MENACE TO WORLD PEACE and a contributory cause of world economic depression.
(a) At the beginning of the Nineteenth Century the improvement of modern communication diminished distance and brought the Far East within easy reach of other nations:
(б) But, in fact, China was not ready for the new contact when it came.
(i) Asa result of the Treaty of Nanking, which ended the War of 1842, some ports were opened to foreign trade and residence.
(ii Foreign influences were introduced into a country whose Government had made no preparations to assimilate them.
(iii) Foreign traders began to settle in her ports before she could provide for their administrative, legal, judicial, intellectual and sanitary requirements.
(iv) The foreigners therefore brought with them conditions and standards to which they were accustomed. Foreign cities sprang up in the Treaty Ports. Foreign methods of organization, of administration and business asserted themselves ... A long period of friction and misunderstanding followed.
(v) THE EFFICACY OF FOREIGN ARMS was demonstrated in a series of armed conflicts.
6. The reluctance of China to receive foreigners and her attitude towards those who were in the country was bound to have serious consequences. It concentrated the attention of her rulers on resistance to and restriction of foreign influence, and prevented her from profiting by the experience of more modern conditions in the foreign settlements. As a result, the constructive reform necessary to enable the country to cope with the new conditions was almost completely neglected.
(a) The inevitable CONFLICT OF TWO IRRECONCILABLE CONCEPTIONS of respective rights and international relations T.F.P TO wars and disputes resulting in the progressive surrender of sovereign rights and the loss of territory, either temporary or permanent.
(b) Foreign courts, administration, police, military establishments were admitted on Chinese soil.
(i) The right to regulate at will her tariff on imports and exports was lost for the time being.
(ii) Her very existence was threatened by the division of her territory into spheres of interest of foreign powers.
8. A Reform movement started after her defeat in the Sino-Japanese War of 1894-95 and the disastrous consequences of the Boxer Uprising of 1900.
9. (a) The Manchu Dynasty had ruled China for two hundred fifty years. After the death of the then Empress Dowager in 1908, it collapsed through its own inherent weakness.
(b) On February 12, 1912, the then Empress Dowager, in the name of the Child Emperor, signed a decree of abdication, and a provisional constitutional regime, with Yuan Shih- Kai as President, was then inaugurated.
(c) (i) With the abdication of the Emperor, his representatives in the provinces, prefectures and districts lost the influence and prestige derived from his authority.
(i) The gradual substitution of military for civil governors in the provinces was an inevitable consequence.
(ii) The post of central executive also could be held only by the military leader who had the strongest army or was supported by the strongest group of provincial or local military chiefs.
(iii) This tendency towards military dictatorship was more apparent in the north than in the south: In the southern province Dr. Sun Yat Sen and the other leaders remained faithful to the idea of constitutionalism.
(a) The First Parliament was convened in Peking in 1913 under Yuan Shih-Kai.
(b) He contracted a huge foreign loan without the consent of Parliament. This brought his political opponents of the Kuomintang or National Party under Dr. Sun’s leadership into open revolt..
(c) During this time China was ravaged by warring factions and the ever present bandits grew into veritable armies.
(d) In 1923 Dr. Sun Yat Sen REORGANIZED THE KUOMINTANG with “THREE PRINCIPLES OF THE PEOPLE”— National Independence, Democratic Government and Social Reorganization.
(e) In 1927, a central government was established at Nanking.
(f) For a time unity was maintained in the services. But not even the semblance of unity could be preserved when powerful war-lords concluded alliances amongst themselves and marched their armies against Nanking. Though they never succeeded in their object, they remained, even after defeat, potential forces to be reckoned with.
11. Disruptive forces in China are still powerful.
(a) At the time of the Washington Conference, China had two completely separate governments, one at Peking and one at Canton, and was disturbed by large bandit forces— preparations were being made for a civil war involving all China.
(b) As a result of the Civil War, which was preceded by an ultimatum sent to the Central Government on January 13, 1922, when the Washington Conference was still in session, the Central Government was overthrown in May, and the independence of Manchuria from the Government installed at Peking in its place was declared in July by Marshal Chang Tso-Lin. There existed no fewer than three governments professing to be independent.
(c THE DANGER OF CIVIL WAR EXISTS AND MUST CONTINUE TO EXIST so long as the Central Government lacks the material means to make its authority swiftly and permanently felt all over the country.
(a) The influence of the Kuomintang has introduced into the nationalism of China an additional and abnormal TINGE OF BITTERNESS AGAINST ALL FOREIGN INFLUENCE, and has EXPANDED ITS AIMS SO AS TO INCLUDE THE LIBERATION OF ALL ASIATIC PEOPLE still subject to “imperialistic oppression.
(b) Chinese nationalism today is also permeated by memories of former greatness, which it desires to revive.
(a) Foreign powers have in general taken a sympathetic attitude towards Chinese aspirations. At the Washington Conference 1921-1922, they were admitted to be acceptable in principle, though there was divergence of opinion as to the best time and method of giving effect to them.
(b) It was felt that an immediate surrender of such rights would impose upon China the obligation to provide administration, police and justice of a standard which, owing to financial and other internal difficulties, she could not at present attain.
(a) The Washington Treaty was designed to start China upon the road of international co-operation for the purpose of solving her difficulties. China could not make the desired and expected progress as she was hampered by the virulence of the anti-foreign propaganda which she pursued.
(b) In two particulars this has been carried so far as to contribute to the creation of the atmosphere in which the present conflict arose:
(c) The use made of economic boycott.
(i) The introduction of anti-foreign propaganda into the schools.
(d) Unaccompanied by effective internal reforms or improvements in national standards, THIS ATTITUDE TENDED TO ALARM THE FOREIGN POWERS and to increase their reluctance to surrender the rights which are at the moment their only protection.
16. In connection with the problems of maintaining law and order, the present INADEQUATE MEANS OF COMMUNICATION IN CHINA is a serious handicap. Unless communications are sufficient to ensure prompt transportation of national forces, the safeguarding of law and order must largely, if not completely, be entrusted to provincial authorities, who, on account of the distance of the Central Government, must be allowed to use their own judgment in handling provincial affairs. Under such conditions, independence of mind and action may easily cross the boundary of law, with the result that the province gradually takes on the aspect of a private estate.
(a) BANDITRY HAS ALWAYS EXISTED IN CHINA and the administration has never been able to suppress it thoroughly ... In more recent times, bandits have also originated from the ranks of unpaid soldiers.
(b) Bandit suppression has been long neglected: The soldiers even co-operate with bandits.
(a) THE COMMUNIST MOVEMENT IN CHINA gained considerable influence since 1921. After a period of tolerance with regard to Communism there was a complete break between Kuomintang and Communism in 1927.
(b) The recrudescence of civil war favoured the growth of communist influence in the period between 1928 and 1931. A Red Army was organized, and extensive areas in Kiangsi and Fukien were Sovietized.
(c) Communism in China not only means, as in most countries . . either 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 has become an actual rival of the national government. It possesses its own law, army and government, and its own territorial sphere of action. For this state of affairs there is no parallel in any other country.
(d) Large parts of the Provinces of Fukien and Kiangsi, and parts of Kwantung, are reliably reported to be completely Sovietized. Communist zones of influence are far more extensive. They cover a large part of China, south of the Yangtze, and parts of the provinces of Hupeh, Anhwei and Kiangsu north of that river. Shanghai has been the centre of the communist propaganda. Individual sympathisers with communism may probably be found in every town in China.
(e) Armed struggle with the communist armies continues even now.
So far as Japan is China’s nearest neighbour and largest customer, she has suffered more than any other power from the lawless conditions in China due to the inadequate means of communication, the danger of civil war, banditry and the menace of Communism.
She has more nationals than any other power, who would suffer if they were made amenable to Chinese law, justice and taxation under present conditions.
(a) Japan felt it impossible to satisfy Chinese aspirations so long as satisfactory SAFEGUARDS TO TAKE THE PLACE OF HER TREATY RIGHTS could not be hoped for.
(b) (i) JAPAN’S ANXIETY TO SAFEGUARD THE LIFE AND PROPERTY OF HER SUBJECTS IN CHINA CAUSED HER TO INTERVENE REPEATEDLY IN TIMES OF CIVIL WAR OR OF LOCAL DISTURBANCES.
(d) Such actions were bitterly resented by China.
This issue however, though AFFECTING JAPAN TO A GREATER EXTENT THAN OTHER POWERS, is not a Sino-Japanese issue alone. China demands immediately the surrender of certain exceptional powers and privileges because they are felt to be derogatory to her national dignity and sovereignty. The Foreign Powers have hesitated to meet these wishes as long as conditions in China did not ensure adequate protection of their nationals, whose interests depend on the security afforded by the enjoyment of special treaty rights.
(a) Manchuria, a large and fertile region, was only forty years ago almost undeveloped and even now under-populated.
(b) It has assumed an increasingly important role in the solution of the surplus population problems of China and Japan.
(ii) Japan’s over-population problem is very grave.
“Comparing the population of Japan per square mile of arable land with that of other countries, the ratio for Japan is exceptionally high, due to the particular geographical formation of the Island Empire:
“Due to a highly concentrated population on agricultural land, the individual holdings are exceedingly small, 35 percent of the farmers tilling less than one acre and 34 percent less than two and a half acres. The expansion limit of tillable land has been reached, as has also the limit of cultivation intensity—in short, the soil of Japan cannot be expected to produce more than it does today, nor can it provide much additional employment.”
(c) Without Japan’s activity, Manchuria could not have attracted and absorbed any large population.
(d) At first the Manchurian conflict was between Russia and Japan. later, between China and her two powerful neighbours.
(e) At first, Manchuria entered into this great conflict of policies ONLY as an area, only for its strategic position.
(ii) IT BECAME COVETED FOR ITS OWN SAKE later, when its agricultural, mineral and forestry resources had been discovered.
(i) Exceptional treaty rights were acquired in the first instance by Russia at the expense of China.
(ii) The Sino-Japanese War of 1894-1895 had given Russia an opportunity to intervene, ostensibly on behalf of China, but in fact in her own interest, as subsequent events proved.
(iii) China ceded to Japan by the Treaty of Shimonoseki in 1895, the Liao-tung Peninsula in South Manchuria, Japan was forced by diplomatic pressure to return to China this Peninsula.
In 1898 Russia secured a lease for twenty-five years of the southern part of this Peninsula which Japan had been forced to give up in 1895.
(iv) In 1896 Russia secured railway building and operating rights.
(v) In 1900 Russia occupied Manchuria on the ground that the Boxer Rising had endangered her nationals.
(vi) Other Powers protested and demanded the withdrawal of her forces—but Russia delayed.
(vii) Russia was trying to enter into a secret Sino-Russian Treaty in 1901, by the terms of which China was to engage not to transfer to other nations or their subjects, without the consent of Russia, mines or other interests in Manchuria, Mongolia and Sinkiang, and to confer on Russia many special privileges including the maintenance of special guards.
(i) Japan followed these maneuvers with particular attention.
(ii) On January 30, 1902, she concluded the Anglo-Japanese Treaty of Alliance.
(iiii) In July 1903 Japan began negotiations with Russia urging for the maintenance of the policy of the Open Door and the territorial integrity of China.
(iv) Having met with no success in her negotiations she resorted to war on February 10, 1904. China remained neutral.
(v) Russia was defeated. On September 5, 1905, the Treaty of Portsmouth was concluded whereby Russia relinquished her exceptional rights in South Manchuria in favour of Japan.
(vi) By the Treaty of Peking of December 1905, China accorded her sanction to this transfer to Japan of the Kwantung leased territory and of the southern branch of the Russian controlled Chinese Eastern Railway as far north as Changchun.
(vii) In an additional agreement China granted to Japan a concession to improve the military railway line between Antung and Mukden.
(viii) In 1906 the South Manchurian Railway Company was organized by Japan.
(ix) Japan utilized the privileges so acquired in furthering the economic development of South Manchuria.
(x) China at first showed little activity in the field of development.
(xi) Even after the Treaty of Portsmouth, which affirmed Chinese sovereignty in Manchuria, the economic activities of Russia and Japan in developing Manchuria figured more prominently.
(c) In 1910, Japan annexed Korea. This annexation indirectly increased Japanese rights in Manchuria.
(i) In 1915 as a result of Japanese “twenty-one demands”, Japan and China signed a treaty and exchanged notes on May 25 regarding South Manchuria and Eastern Inner Mongolia.
(ii) By this Treaty the leases of the Kwantung Territory including Port Arthur and Dalany (now Dairen) and the concessions for the South Manchuria and the An- tung-Mukden Railways were all extended from twenty-five years to ninety-nine years. Furthermore, Japanese subjects in South Manchuria acquired the right to travel and reside, to engage in business of any kind and to lease land necessary for trade, industry and agriculture. Japan also obtained rights of priority for railways. She also secured certain other rights which she relinquished at the Washington. Conference of 1921-1922.
(i) The war between Russia and Japan was followed almost immediately by a policy of close co-operation.
(ii) Russia and Japan delimited their respective spheres of interest in North and South Manchuria.
(iii) The Russian Revolution of 1917 shattered the basis of Russo-Japanese understanding and co-operation in Manchuria.
(iv) The Russian Revolution of 1917 gave China a favourable opportunity to assert her sovereign rights in North Manchuria: She began to take a more active part in the government and development of the country.
(v) The declarations of policy made in 1919 and 1920 by the Soviet Government with regard to China implied a complete relinquishment of the special rights which Imperial Russia had acquired in China, notably those acquired in North Manchuria.
(vi) This resulted in the Sino-Russian Agreement of May 31, 1924.
(vii) China was intolerant of even what remnant of interest remained with U. S. S. R. after this Agreement of 1924 and made final efforts to liquidate altogether
the Soviet influence in Manchuria in 1929.
(viii) This resulted in raids by Soviet Troops across the Manchurian Border which developed into a military invasion in November 1929.
(a) The Chinese Revolution of 1911, which resulted in the fall of the Manchu Dynasty as stated in number 9, above, was not favoured by the then Manchurian authorities. These authorities succeeded in saving Manchuria from the turmoil of civil war by ordering Chang Tso-Lin to resist the advance of the revolutionary troops.
(b) When the Revolution resulted in the establishment of the Republic, Manchuria accepted the fait accompli and voluntarily followed the leadership of Yuan Shih-Kai, the first President of the Republic.
(i) In 1916 Chang Tso-Lin was appointed military governor of Fontien Province concurrently acting as civil governor.
(ii) IN JULY 1922 CHANG TSO-LIN RENOUNCED ALLEGIANCE TO THE CENTRAL GOVERNMENT AND MAINTAINED COMPLETE INDEPENDENCE of action in Manchuria until he extended his authority south of the wall and became master of Peking as well.
(iii) He expressed his willingness to respect foreign rights and accepted the obligations of China. but he requested foreign powers to negotiate henceforth directly with his administration in all matters concerning Manchuria.
(iv) Accordingly, he repudiated the Sino-Soviet Agreement of May 31, 1924, and persuaded the U.S.S.R. to conclude a separate agreement with him in September 1924. This is his Mukden Agreement with U.S.S.R..
(v) This fact emphasized Chang Tso-Lin’s insistence on the recognition of his complete independence both in domestic and foreign policy.
(i) Chang Tso-Lin became involved in Chinese Civil War.
(ii) In her own interest Japan advised him to keep out of the factional strife in China and concentrate his energy on the development of Manchuria.
(iii) The Marshal resented this advice and disregarded it. (b) At one time he succeeded in advancing into Northern Provinces. Ultimately he was defeated and Japan in her own interest in South Manchuria advised him to withdraw his armies into South Manchuria before it was too late. THE OBJECT OF JAPAN was to save Manchuria from the evils of civil war which would have resulted from the entry of a defeated army pursued by its victors.
(i) The Marshal resented the advise, but was obliged to follow it.
(ii) He left Peiping on June 3, 1928, for Mukden, but was killed on the next day by an explosion which wrecked his train just outside the city.
(iii) The responsibility for this murder has never been established . The tragedy remains shrouded in mystery but the suspicion of Japanese complicity became an additional factor in the state of Sino-Japanese tension.
(iv) One of the reasons for this suspicion was that in the last years of his life, Marshal Chang showed increasing unwillingness to allow Japan to profit by the privileges she derived from various treaties and agreements.
(a) After the death of Marshal Chang Tso-Lin, his son, Chang Hsueh-Liang, became the ruler of Manchuria.
(b) In December 1928 he accepted the National Flag and declared his allegiance to the Central Government.
(ii) He was made the Commander-in-Chief of the North Eastern Frontier Army and was also confirmed as Chief of the administration of Manchuria with addition of Jehol.
(iii) The relationship with the Central Government depended in all affairs—military, civil, financial and foreign-—-on mere voluntary co-operation. Orders or instructions requiring unquestioning obedience would not have been tolerated.
27. ANTI-JAPANESE AGITATION WAS INTENSIFIED EVERY DAY. In April 1931, a five day conference under the auspices of the People's Foreign Policy Association was held at Mukden which discussed the possibility of liquidating the Japanese position in Manchuria. Pressure was brought to bear on Chinese houseowners and landlords to raise the rents of Japanese and Korean tenants or to refuse renewal of rent contracts. By gaining control over Manchuria's staple products, the authorities attempted to compel the foreigners, particularly the Japanese, to pay higher prices.
28. The above analysis shows a sufficient conflict between the fundamental interests of Japan and China in Manchuria.
29. (a) Japanese interests in Manchuria differ both in character and degree from those of any other foreign country.
(b) Deep in the mind of every Japanese is the memory of their country s great struggle with Russia in 1904- 1905, fought on the plains of Manchuria.
(ii) The war was life-and-death struggle fought in self-defense against the menace of Russian encroachments.
(iii) Japanese interest in Manchuria began ten years before that war.
(iv) The war with China, in 1894-1895, ended in the Treaty of Peace signed at Shimonoseki ceded to Japan IN FULL SOVEREIGNTY the Liao-tung Peninsula.
(v) To the Japanese, the fact that Russia, France and Germany forced them to renounce their cession does not affect their conviction that Japan obtained this part of Manchuria as the result of a successful war and thereby acquired a moral right to it which still exists.
(vi) Manchuria has been frequently referred to as the “lifeline” of Japan.
Fundamental among the interests of Japan in Manchuria is the STRATEGIC IMPORTANCE OF THIS TERRITORY TO HER SELF-DEFENSE AND NATIONAL EXISTENCE.
(vii) There are those in Japan who think that she should entrench herself firmly in Manchuria against the possibility of attack from U. S. S. R. .
(viii) Especially in the minds of Japanese military men, the right claimed, under agreements with Russia and China to station a few thousand railway guards along the South Manchuria Railway is small recompense for the enormous sacrifices of their country in the Russo-Japanese War, and a meagre security against the possibility of attack from that direction..
(ix) Patriotic sentiment, the paramount need for military defense, and the exceptional treaty rights all combine to create the claim to a “ special position ” in Manchuria.
(x) Feelings and historical associations which are the heritage of the Russo-Japanese War, and pride in the achievements of Japanese enterprise in Manchuria for the last quarter-century, are an indefinable but real part of the Japanese claim to a “special position”.
(xi) The signatories of the Nine-Power Treaty of the Washington Conference of February 6, 1922, challenged to a large extent the claims of a signatory state to a “special position” or to “special rights and interests” in any part of China.
(xii) Japan’s claim was well expressed in Viscount Ishii’s Memoirs when he said: “Even if the Lansing-Ishii Agreement is abolished, Japan’s special interests un-
shakenly exist there. The special interests which Japan possesses in China neither were created by all international agreement, nor can they become the objects of abolition.”
30. Japan’s general policy towards Manchuria:
(a) always has had THE SAME GENERAL AIM—namely, to maintain and develop Japan’s interests, to obtain adequate protection of Japanese lives and properties.
(b) but with different POLICIES FOR THE REALIZATION of this aim:
(i) the friendship policy of Baron Shidehara rested on the basis of goodwill and neighbourliness.
(ii) the positive policy of Baron Tanaka rested upon military force.
(c) The two policies differed largely on the question as to the lengths to which Japan should go to maintain peace and order in Manchuria.
(i) The Friendship Policy extended only to the protection of Japanese interests there.
(ii) The Positive Policy placed greater emphasis upon the necessity of regarding Manchuria AS DISTINCT FROM THE REST OF CHINA—“ if disturbances spread to Manchuria and Mongolia, and, as a result, peace and order are disrupted, thereby MENACING Japan ’ s special position and rights and interests there, Japan would DEFEND them no matter whence the menace comes. Japan would take upon herself the task of preserving ‘peace and order’ in Manchuria”.
(d) In the policies adopted for realizing the aim specified above there was one COMMON CARDINAL FEATURE—namely, to regard Manchuria and Eastern Inner Mongolia as distinct from the rest of China.
(e) The policy of Japan in Manchuria was chiefly concerned with its relations with the de facto ruler of the provinces.
(f) In the spring of 1928, when the Nationalist armies of China were marching on Peking in an effort to drive the forces of Chang Tso-Lin, the Japanses Government under the Premiership of Baron Tanaka issued a declaration that on account of her “special position” in Manchuria Japan would maintain peace and order in that region.
(a) Besides what has been stated above there were Sino-Japanese Railway issues in Manchuria.
(i) Most of these issues, definite and technical, involving no problems of principles or policy, were obviously suited for arbitration or judicial discrimination.
(ii) There were some due to intense rivalry between China and Japan which resulted from a deep-seated conflict in national policies.
The Commission also noticed the Korean Problem in Manchuria, the Wanpaoshan Affair, and the Murder of Captain Nakamura by Chinese soldiers during the midsummer of 1931.
According to the Commission the Nakamura Case, more than any other single incident, greatly aggravated the resentment of the Japanese.
Coming to the incident of 18 September 1931, the Commission observed “the military operations of the Japanese troops during this night cannot be regarded as measures of legitimate self-defense”, but that “it is not impossible that the officers on the spot might have thought that they were acting in self- defense’.
The Japanese had a carefully prepared plan to meet the case of possible hostilities between themselves and the Chinese. On the night of September 18 and the night of September 19, this plan was put into operation with swiftness and precision.
No report offering a comprehensive view of the relations between China and Japan could well avoid a DISCUSSION OF THE BOYCOTT. The Lytton Report traces the origin of the boycott in China as far back as 1893 to the Society for the Regeneration of China. From 1925 onward the operations of the boycott were NOT ONLY INSPIRED BUT ORGANIZED, CO-ORDINATED AND SUPERVISED BY THE KUOMlNTANG WITH all the formidable propaganda, using slogans well chosen to incite the popular mind against the enemy country. The Japanese merchants interviewed by the Commission insisted that the boycott as practised in China was an act of aggression, The Commission, though it did not confirm this view, refused to sustain the contention of its Chinese assessor that the boycott was pursued generally speaking, in a legitimate manner. The boycott, the Commission observed, may certainly be a legitimate weapon of defense against aggression by a stronger country. We do not know whether international jurists will some day be obliged to take a much more sophisticated attitude toward the boycott than is taken at the present time. The Commission regarded the question whether the organized application of boycott to a particular country was consistent with friendly relations or in conformity with treaty obligations, to be a problem of international law, and expressed the hope that, in the interest of all states, this problem should be considered at an early date and regulated by international agreement.
I have indicated elsewhere my view of the legal position created by such movements.
In the above analysis in item 22, I have given the view of the Commission regarding JAPAN’S OVER-POPULATION PROBLEM. It will be of some importance to notice here how the question of over-population in Japan was looked upon with much concern in other countries.
Professor W. Thompson of the University of Miami in pointing out the danger spots in world population said:
In the Western Pacific area by far the most urgent needs are those of the Japanese. Japan is decidedly overpopulated now as compared with most other countries. It needs more territory for agricultural expansion, and it needs larger mineral resources for the development of its industry. Japan’s policies with regard to China are today being determined by this really urgent economic need. . . . Their policy towards China is being, and will be, determined by their estimation of the best way to exploit Manchuria. . . Since this is the customary method of procedure in international relations today, it does not in anyway reflect discredit upon Japan. . .”
In connection with the Japanese annexation of Korea in 1910 referred to in item 23 (e) above, it will be pertinent to notice the treaties of 1902 and of 1905 between Great Britain and Japan. Under the Treaty of 1902 the contracting parties, while mutually recognizing the independence of China and Korea, declared that in view of their SPECIAL INTERESTS in these countries, it should be admissible for either of them to take such measures as might be indispensable to safeguard those interests from the aggressive action of any other powers or from internal disturbances necessitating intervention for the protection of life and property. It was further agreed that if either Great Britain or Japan should become involved in war with another power in defense of their respective interests as above described, the other contracting party should maintain strict neutrality and use its best efforts to prevent other powers from joining in hostilities against its ally. Should, however, any other power or powers take part in the conflict, then, it was agreed that the other contracting party should come to the assistance of its ally, conduct the war in common, and make peace in mutual agreement with it. These provisions were greatly amplified by the terms of the new Treaty of 1905 in substitution of the former agreement, On August 8, 1905, while the peace negotiations were in progress at Portsmouth, the Second Alliance Treaty was concluded. By the terms of this Treaty it was agreed:
1. Firmly to maintain the peace of the whole of the Far East and of India.
2. To maintain the independence and territorial integrity of China and to respect the principle of the “open door”.
3. Mutually to respect the colonial rights and SPECIAL INTERESTS of the contracting parties in the Far East and in India.
This new treaty provided for a whole-hearted offensive and defensive alliance. Great Britain recognized JAPAN’S SPECIAL SPHERE OF INTEREST in Korea and accorded her freedom to advise, oversee and protect that country. The chief thing that Japan and Great Britain hoped to secure by this extended treaty was mutual assistance in defending Korea and India against an attack by a third power. Japan was left free to annex Korea.
This treaty was revised and replaced by the Treaty of 1911.
It will be pertinent to notice in this connection the Lansing-Ishii exchange of notes in the year 1917 which contained the follow ing statement: “The Governments of the United States and Japan recognize THAT TERRITORIAL PROPINQUITY CREATES SPECIAL RELATIONS BETWEEN COUNTRIES, and, consequently, the Government of the United States recognizes that Japan has SPECIAL INTERESTS in China, particularly in that part to which her possessions are contiguous. ”
The signatories of the Nine-Power Treaty of the Washington Conference of February 6, 1922, challenged to a large extent this claim to a “special position” and favoured the Open Door Policy. This Open Door doctrine was of 1899 and was an Anglo-American Policy. The explanation is believed to be that the British held the strongest position in China and preferred exploitation of that country under a system of international privilege.
The Sino-Japanese Treaty of 1915 has been mentioned in item 23 (d) of the above analysis. It may be noticed in that connection that China sought to repudiate this treaty as procured by coercion.
The freedom of consent, which in principle is held to be as necessary to the validity of contracts between states as it is to those between individuals may be taken to exist as between states under conditions which would not be considered compatible with it in the case of individuals. In international law, so long as force and intimidation were permitted means of obtaining redress for wrongs, it was impossible to look upon them as vitiating the agreement, made in consequence of their use.
Whatever be the position after the Pact of Paris, there is no doubt that in 1915 war was a legitimate means of realizing a state’s claim. Consent, therefore, must be conceived to have been freely given in international contracts of those days, notwithstanding that it might have been obtained by force. It might be contended that this rule should be confined only to cases where the claim of the intimidating state relates to compensation for alleged past wrongs or security against future possible wrongs and should have no application where admittedly the case is one of grant of some interest sought by one state from another. As international law cannot measure what is due in protection of a state which declares itself to be in danger, it regards all compacts valid, notwithstanding the use of force or intimidation, provided they do not destroy the independence of the state which has thus been obliged to enter into them. If the Pact of Paris be taken as having outlawed all forces, the position would now be quite different.
I have summarized above in item 23 (e) (viii) the account given by the Commission of the military invasion of China by the U. S. S. R. in November, 1929. It will be pertinent to notice in that connection that during this dispute, the Soviet Government had always taken the position, in answer to various memoranda from third power signatories to the Pact of Paris, that her action had been taken in legitimate self-defense and could in no way be interpreted as a breach of the agreement.
The Commission gave its view of the three-power intervention in the Sino-Japanese Treaty of 1895. I have noticed this in item 23 (a) of my analysis. It would be interesting to notice in this connection the world view of the legitimacy of this three-power intervention.
From the point of view of law, the states so intervening were considered as going beyond their legal powers. Their excuse or justification could only be a moral one. Referring to this particular intervention, HALL REMARKED: “An instance of such an intervention is not calculated to illustrate the disinterestedness of the intervening powers. The original terms of the Treaty or Shi- monoseki, concluded in April 1895, between China and Japan, provided for the cession to the latter of the Liao-tong Peninsula, including Port Arthur. Thereupon Russia, Germany and France interposed with what was euphemistically termed “a friendly representation”, and informed Japan, practically under the threat of war, that she would not be allowed to retain any increase of territory on the mainland. The reason assigned for the intervention was the danger to the independence of Korea and the humiliation inflicted upon the Court of Peking if Japan were thus to acquire a footing upon the Gulf of Peohi-li.
Great Britain was invited to join in the remonstrance, but declined to do so; Lord Rosebery however advised Japan to yield to the overwhelming forces arrayed against her, a course which was reluctantly adopted. Into the motives of France and Germany it is unnecessary to enter; but the fact that in 1898 Russia obtained from China a lease for twenty-five years of Port Arthur under which it was promptly converted into a strongly fortified naval port, and that she remained in occupation of the Liao-tong Peninsula until her forcible ejection by the armed forces of Japan, cast a significant light upon her action. The Treaty of Portsmouth (New Hampshire), concluded in September 1905, restored to Japan in fact, though not in set terms, the territory of which she had been deprived ten years earlier.”
By a treaty signed at Peking on 6 March 1898, Germany obtained from China a lease of the Shantung Peninsula for ninety-nine years.
Great Britain secured a lease for ninety-nine years of Wei-hai Wei under a treaty of July 1, 1898.
The Commission speaks of the Japanese claim to a “ special position ” in Manchuria. Items 19, 20, 21, 22, 23 (a) and (&), 27, and 29 of the above analysis will indicate the character of Japan ’ s special interest in Manchuria.
The prosecution prefers to characterize whatever interests Japan had in Manchuria and China as acquired by prior aggressions, and catalogues Japan’s subsequent undertakings in respect of them, showing her obligations towards China and other nations. We have no evidence before us entitling us to accept this characterization of the Japanese interests. But assuming that these had been acquired by Japan by prior aggressions, her legal position in the present international system would not, in the least, be affected by that fact. It would be pertinent to recall to our memory that the majority of the interests claimed by the Western Prosecuting Powers in the Eastern Hemisphere including China were acquired by such aggressive methods, and when they were making reservations in relation to their respective interests in the Eastern Hemisphere while signing the Pact of Paris, they were certainly contemplating their right of self-defense and self-protection as extending to such interests.
I would like to add in this connection that at least Great Britain recognized this “special position” in her treaties of alliance with Japan. It may also be noticed that if, what Japan claims to be the character of her interest in Manchuria, be correct—if the special position or special interests claimed by her be necessary for her self-preservation, then this Treaty of Washington of 1922 might not deprive her of such interests.
Self-preservation is not only a right of a state, it is also its paramount duty; all other duties are subordinated to this right and duty of self-preservation. In international relations all the states treat this right as a governing condition, subject to which all rights and duties exist. It works by suspending the obligation to act in obedience to other principles. The idea of self-preservation may extend under circumstances so as to include self-protection against serious hurt.
Hall says: “If the safety of a state is gravely and immediately threatened either by occurrences in another state, or aggression prepared there, which the government of the latter is unable, or professes itself to be unable, to prevent, or when there is an imminent certainty that such occurrences or aggression will take place if measures are not taken to forestall them, the circumstances may fairly be considered to be such as to place the right of self-preservation above the duty of respecting a freedom of action which must have become nominal, on the supposition that the state from which the danger comes is willing, if it can, to perform its international duties.”
Cheney Hyde seems to go further when he says: “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.”
Japan claimed, on the strength of this special position, the right of intervention in the spring of 1928, when the nationalist armies of China were marching on Peking. Under the Treaty of Alliance with Great Britain, Japan had, so long as that treaty was in force, such an understanding with that great power. International law, I believe, allows such intervention. (See Hall, Chapter VIII) . Whether intervention on behalf of any party to a civil war be legitimate or not, this was an offer of intervention to protect the intervener’s own rights and interests. THE WASHINGTON TREATY made little actual change in Manchuria. In spite of the provisions with respect to the Open Door Policy, it has had but qualified application to Manchuria in view of the character and extent of Japan’s vested interest there.
It may not be out of place to notice here how, by this time, THE OTHER SIGNATORY POWERS WERE VIEWING THIS WASHINGTON TREATY.
On September 4, 1925, the Signatory Powers presented to the Chinese Foreign Office notes in reply to the Chinese note of June 24th requesting a readjustment of Chinese Treaty relations with the Foreign Powers. In these notes the Powers state that they are “now prepared to consider the Chinese Government’s proposal for the modification of existing treaties IN MEASURE as the Chinese authorities demonstrate THEIR WILLINGNESS AND ABILITY to fulfil their obligations and to assume the protection of foreign rights and interests now safeguarded by the exceptional provisions of those treaties.” The Nine-Power identical note of September 4th also admonished China of “the necessity of giving concrete evidence of its ABILITY and WILLINGNESS to enforce respect for the safety of foreign lives and property and to suppress disorders and anti- foreign agitations” as a condition for the carrying on of negotiations in regard to the desires which the Chinese Government has presented for the consideration of the treaty Powers.
The relations of China with the other Powers during 1925 assumed an ominous aspect and in that connection the Government of the United States considered it necessary to issue a public declaration of its policy in relation to Chinese affairs. The Secretary of State, Mr. Kellogg, utilized the occasion of his address before the annual meeting of the American Bar Association at Detroit on September 2, 1925, to make clear the attitude of the American Government. He declared that the policy of the United States “may be said to be to respect the sovereignty and territorial integrity of China, to encourage the development of an effective state government, to maintain the 'open door’or equal opportunity for the trade of nationals of all countries, to carry out scrupulously the obligations and promises made to China at the Washington Conference, and TO REQUIRE CHINA TO PERFORM THE OBLIGATIONS OF A SOVEREIGN STATE IN THE PROTECTION OF FOREIGN CITIZENS AND THEIR PROPERTY.”
The Secretary of State concluded his address of September 2nd by pointing out that under the treaty arrangements which China now seeks to revise, thousands of American and foreigners have taken up their residence and carried on their business within that country. He undoubtedly expressed the sentiment of the people of the United States when he said that they “do not wish to control, by treaty or otherwise, the internal policies of China, to fix its tariffs, or establish and administer courts, but that they look FORWARD TO THE DAY when this will not be necessary.” BUT THE GOVERNMENT OWES TO ITS CITIZENS IN CHINA “the duty of adequate protection and the Chinese Government must have a realization of its SOVEREIGN OBLIGATIONS according to the law of all civilized nations." ONE OF THE MOST DIFFICULT QUESTIONS, he said, in the discussion and settlement of the problem relating to conventional tariffs, extra-territorial rights and foreign settlements in China, “is whether China now has a stable government capable of carrying out these treaty obligations.”
IT IS A NOTORIOUS FACT THAT THE TREATY WAS NOT GIVEN EFFECT TO BY ANY OF THE SIGNATORIES and one of the reasons for this was given by the British Government in 1926 to be the PROGRESSIVE DECLINE, during this interval, IN THE EFFECTIVE POWER OF THE GOVERNMENT, nominally representing all China, at Peking.
In an official statement of British Policy made on the 14th October 1926, the new British Minister, Mr. Miles Lampson, declared that “in the absence of any settled and permanent Chinese Government, British lives and property were endangered by the prevailing lawlessness, and British interests were liable at any moment to be prejudiced by the action of irresponsible individuals or bodies.” He added that, “Where no Chinese authority was in existence, His Majesty's Government were bound to accord to their nationals their fullest protection and support and to exact reparation for the wrong done.”
On the 18th December 1926, while Mr. Lampson was on his way to Peking, a memorandum on British Policy was communicated to the diplomatic representatives of the Washington Treaty Powers. The general purport of this memorandum so far as the same is relevant for our present purpose is conveyed in its paragraphs 2, 5, and 6 which read as follows:
2. Unfortunately the Tariff Conference did not meet for four years, and during that period the situation had greatly deteriorated. During a succession of civil wars THE AUTHORITY OF THE PEKING GOVERNMENT HAD DIMINISHED ALMOST TO VANISHING POINT, while in the south a powerful Nationalist Government at Canton definitely disputed the right of the Government at her name. This process of disintegration, civil war, and waning central authority continued with increased acceleration after the Tariff Conference had met until eventually the Conference negotiations came to an end because there was no longer a Government with whom to negotiate.
5. The situation which exists in China today is thus entirely different from that which faced the Powers at the time they framed the Washington treaties. In the present state of confusion, though some progress has been made by means of local negotiation and agreements with regional Governments, it has not been possible for the Powers to proceed with the larger programme of treaty revision which was foreshadowed at Washington or to arrive at a settlement of any of the outstanding questions relating to the position of foreigners in China. The political disintegration in China has, however, been accompanied by the growth of a powerful Nationalist movement, which aimed at gaining for China an equal place a- mong the nations, and any failure to meet this movement with sympathy and understanding would not respond to the real intentions of the Powers towards China.
6. His Majesty’s Government, after carefully reviewing the position, desire to submit their considered opinion as to the course which the Washington Treaty Powers should now adopt. His Majesty’s Government propose that these Governments shall issue a statement setting forth the essential facts of the situation, declaring their readiness to negotiate on treaty revision and all other outstanding questions AS SOON AS THE CHINESE THEMSELVES HAVE CONSTITUTED A GOVERNMENT WITH AUTHORITY TO NEGOTIATE and stating their intention pending the establishment of such a Government to pursue a constructive policy in harmony with the spirit of the Washington Conference but developed and adapted to meet the altered circumstances of the present time.
For various reasons this demarche on the part of the British Government found little favour with any of the parties concerned. Even the Kuomintang, to whose aspirations the memorandum was a response, were reported to be divided in the matter; and the right wing, who were inclined to accept the document as evidence of sincere though moderate British goodwill, appear to have been overborne by the left, who denounced it as an insidious attempt to forestall the complete realization of the Nationalist programme by inadequate concessions.
The memorandum refers to THE PROGRESSIVE DECLINE IN THE EFFECTIVE POWER OF THE CHINESE GOVERNMENT SINCE THE TREATY OF WASHINGTON. This decline culminated in the virtual dissolution of the Peking Government at the moment in April 1926 when Peking passed out of the hands of the Kuom- inchun into those of Chang Tso-lin and Wu P’ei-fu in the course of the northern Campaign in the Chinese civil war; and though the momentarily victorious dictators found it politic, at their convenience, to set up the shadow of a Central Government at Peking again, the impotence of Peking to negotiate authoritatively and implement effectively any international agreements with the Powers was demonstrated finally by the inconclusive termination of the Tariff Conference on the 23rd July, 1926, and by the impossibility of taking immediate action upon the report of the Extra-Territoriality Commission which concluded its sittings on the 16th September, 1926.
The defense pointed out that since the signing of that Nine-Power Treaty, at least five important incidents occurred in the Far East which had not been anticipated at the time of the conclusion of the treaty: Amongst others, they referred to the following:
1. The abandonment by China of the very basic principle of the treaty: The basic premise for the treaty was that China was to keep friendly relations with foreign countries, —that it was thought desirable “ to adopt a policy to promote intercourse between China and the other powers upon the basis of equality of opportunity. China, however, since then adopted, as one of her governmental policies, anti-foreign attitude, including intense and extensive anti-Japanese attitude.
2. The development of Chinese Communist Party: Communism in China did not mean only a political doctrine held by certain members of existing parties, or an organization of special party to compete for power with other political parties: It became an actual rival of the national government possessing its own law, army and government and having its own territorial sphere of action.
3. Increase in the Chinese armament: At the time of the Washington Conference armament limitation was generally desired, and it was ardently desired that China immediately would take effective steps to reduce her troops. Instead of any reduction, the Chinese troops went on increasing and China was maintaining a large standing army equipped with up-to-date weapons.
4. The development of the Soviet Union into a powerful state: Despite her being the neighbouring country to China, she was not called upon to participate in the treaty. Since the treaty, however, she grew to be a big power with extraordinary military strength and became a menace not only to China but to Japan herself.
5. A fundamental change in the world economic principle: With Great Britain taking steps forward in the direction of protectionism, world economy since then headed for what has been termed “bloc economy”. Under the circumstances, neighbouring countries in East Asia, specially Japan and China, had to think of bringing their economic ties much closer as a measure of protection against economic collapse.
The Nine-Power Treaty sets no definite time of expiration. The defense contended that such a treaty is understood, in international law, as concluded with the tacit condition, “if things remain as they are”—clausula rebus sic stantibus. Things having all changed, the defense claimed that the treaty obligation terminated.
There is much force in these contentions and if anything turns upon this treaty obligation, these certainly would require serious consideration. I would take up this question while examining the bona fides or otherwise of the Japanese view of the American attitude as disclosed in the Hull note of the 26th November 1941. Of course the question of Chinese sovereignty and of her territorial integrity would not be dependent entirely on this treaty. It would certainly require consideration apart from its position under the Nine- Power Treaty. So far, however, as any claim to such integrity is based on this treaty, its examination would involve serious consideration of the above matters.
It will also be interesting to note in this connection what happened after the Manchurian incident.
On the 7th January 1932, the Secretary of State at Washington, Mr. Henry Stimson, sent an identic note to the Chinese and Japanese Governments, in which the most important passage was to the following effect:
In view of the present situation and of its own rights and obligations therein, the American Government deems it to be its duty to notify the Government of Chinese Republic and the Imperial Japanese Government that it cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between these governments, or agents thereof, which may impair the treaty rights of the United States or its citizens in China, including those which relate to the Sovereignty, the independence or the territorial and administrative integrity of the Republic of China, or to the international policy relative to China, commonly known as the Open Door Policy, and that it does not intend to recognize any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligation of the Pact of Paris of the 27th August 1928, to which treaty both China and Japan, as well as the United States, are parties.
Copies of this note were handed simultaneously to the diplomatic representatives at Washington of the other six Powers that were co-parties to the Nine-Power Treaty with China and Japan and the United States.
THE RESPONSE WHICH THIS AMERICAN NOTE ACTUALLY EVOKED from the Government of the United Kingdom was the following communique, which was issued by the Foreign Office in Whitehall on the 9th January, 1932:
“His Majesty’s Government stand by the policy of the open door for international trade in Manchuria, which was guaranteed by the Nine-Power Treaty at Washington.
“Since the recent events in Manchuria, the Japanese representatives at the Council of the League of Nations at Geneva stated on the 13th October that Japan was the champion in Manchuria of the principle of equal opportunity and the open door for the economic activities of all nations. Further, on the 28th December, the Japanese Prime Minister stated that Japan would adhere to the Open Door Policy, and would welcome participation and co-operation in Manchurian enterprise.”
“In view of these statements, his Majesty ’ s Government have not considered it necessary to address any formal note to the Japanese Government on the lines of the American Government’s note, but the Japanese Ambassador in London has been requested to obtain confirmation of these assurances from his Government.” The Times of the 11th January 1932 characterized this as a wise action on the part of the British Government. The Times wrote:
“In the circumstances it was fully justified in limiting its action to a request for a confirmation of the assurances given by Mr. Yoshizawa to the League Council in October and by the new Japanese Prime Minister a fortnight ago, to the effect that Japan would adhere to the principle of the ‘open door’ which her Government claims to be defending in Manchuria. There is no doubt that these assurances will be repeated— all the more readily since the principle of equal opportunity for foreign commerce and industry in China has been challenged by the Chinese Nationalists on several occasions since 1922, while the party which organized the boycotts, first of British and subsequently of Japanese commerce, is now in nominal control of China. Nor does it seem to be the immediate business of the Foreign Office to defend the ‘ administrative integrity ’ of China until that integrity is something more than an ideal. IT DID NOT EXIST IN 1922, AND IT DOES NOT EXIST TODAY.”
The last two sentences of the passage require special notice in this connection.
It is indeed a very pertinent consideration having important bearing on the questions involved in the case before us, how far a people can claim the protection of international law when its organization AS A STATE fails and it is hopelessly involved in anarchy. I shall examine this matter while considering the question of Japanese action in the rest of China. This would only have some bearing on the question of justification of any action taken by Japan. For our present purpose, however, that is somewhat beside the point.
In item 18 above I have given the views of the Lytton Commission about the character of the communistic development in China. The prosecution in its summation refers to a portion of this report and invites us to hold that communism ceased to be a menace to the Japanese interest in China in 1931. The Lytton Report is against this view. Further, as I have already noticed, the defense offered additional evidence relating to this danger of communistic development but that evidence was rejected by us as irrelevant. In my opinion, after such exclusion of evidence we cannot accept the prosecution summation in this respect. I have already given my reason for saying so in an earlier part of this judgment.
When the whole world is reverberating with expressions of terror of communistic development, and when from every quarter we are having reports of extensive and immediate preparations, economic and military, against the apprehended menace of communistic spread, it is, I believe needless to remind that, justifiable or not, Japan’s fear of this supposed menace and its consequent preparations and actions are at least explicable without the aid of the theory of any enormous conspiracy as alleged in Counts 1 to 5.
Even today, we are told that “failure to block the communist in China would doom Japan.” “Communist conquest of China”, it is declared by the politicians and diplomats of the “peace-loving”democratic countries, “would lead rapidly to communist victory in Indo-China, and communist control of Indo-China would be followed by communist subjection of Siam and the Malaya Peninsula”. Such control of East Asia, it is apprehended, would sepa- ratejapan from the Asiatic Continent’s market and raw materials, “if the Japanese cannot get rice and raw materials from sales on the Continent of Asia, then Japan economically is doomed.”
In such a case “Japan’s only solution would be to go under the iron curtain and become a satellite nation.” lt is not for us to see whether there is any real justification for such an apprehension; or, whether it is thus presented with the same fantastic enormity as is the charge of conspiracy in the case before us. But if such things can be apprehended by any respectable statesman, I do not see why when such apprehension is pleaded by the accused in this case, we should ascribe the same to any malafides on their part, specially when we know that they were more vitally concerned with the fate of Japan than any of those statesmen who are now expressing such apprehensions.
After reviewing all the facts and circumstances enumerated above, the Commission dismissed the past with a final reflection already noticed by me, and, as has been contended by the defense, these final reflections of the Commission, if properly appreciated, should suffice to dispel the present charge of crime. In my opinion, these ought at least to explain the incidents without having recourse to any theory of conspiracy.
On the report of the Lytton Commission, the League of Nations Assembly concluded on February 24, 1933, that the presence of Japanese Troops outside the zone of the South Manchurian Railway and their operations outside this zone are incompatible with the legal principles which should govern the settlement of the dispute and that while at the origin of the state of tension that existed before September 18, 1931, certain responsibilities would appear to be on one side and the other, no question of Chinese responsibility can arise for the development of events SINCE SEPTEMBER 18, 1931.
The Assembly ’ s resolution of February 24, 1933, implied that Japan was the aggressor because of its failure to carry out the Council ’ s resolution of September 30, and December 10, 1931 adopted under Article II of the Covenant of the League of Nations and accepted by Japan. These resolutions required Japan to withdraw troops into the South Manchurian Railway Zone as rapidly as defensive necessities permitted.
Much has been made of the fact that Japan did not obey the League injunctions. The League insisted that the Japanese Forces must withdraw before anything else was discussed. As was observed in some quarters this attitude of the League might not have been justifiable in the circumstances of the case. The position of the Japanese forces was not that of a force having violated a national frontier, “it is one thing to withdraw troops behind a frontier in your own country where they would be perfectly safe; it is quite another thing to withdraw them to a railway line running through a foreign country where they might easily be surrounded.”
The order was a peremptory one issued by the League. “But everybody knew that nothing whatever would or could be done to enforce the order. If Japan had yielded to intimidation and withdrawn her troops, Manchuria would have been delivered over to a more horrible state of anarchy and misrule even than before.”
THE LEAGUE HAD NO MEANS TO STEP IN AND RESTORE ORDER IN MANCHURIA. The League equally had no means to guarantee security to the Japanese Force. “The feeling that Europe did not care a straw about Japan’s special difficulties or about the essential merits of the dispute tended to alienate Japan and to drive her to the extreme courses which she ultimately followed. ” “As for China”, the Observer said, “we should have told her from the beginning that she was very largely to blame for her open disregard of treaty obligations and for her shocking misgovernment, both of which were ruining economic interests in Manchuria which were vital to Japan’s existence as a nation; that it was useless to look to the Powers for protection because, whatever the covenant might say, no country was going to apply sanctions to Japan merely in order to re-establish Chinese misrule in Manchuria; that therefore China had better try and stop her own senseless civil wars, set her house in order and try and make the best terms she could with Japan; and that when she took this course we would do our best to see that she got a fair deal. ”
It may be noticed in this connection that the League was unwilling to consider the substance of the dispute before having secured a restoration of the military status quo ante. As to this, Japan passionately believed that she was in the right and China in the wrong, and she was therefore not much moved by the hostility with which she met at Geneva. “She may have attributed this to annoyance because Japan had upset Geneva’s apple cart." Whatever it is, this disobedience does not indicate any design or conspiracy as alleged in Counts 1 and 2 of the Indictment.
Let us see how far the additional evidence adduced in this case would lead us away from this conclusion,
I shall take up the events in the order in which the prosecution presented them in its summation.
Let us take up the murder of Chang Tso-lin first.
The additional evidence relied on by the Prosecution in this respect is supplied by the depositions of Baron Okada, Tanaka Ryukichi and Morishima.
The Prosecution claims that this additional evidence establishes the following:
1. That the Japanese Government had established the responsibility of Chang Tso-lin’s murder and shown it to be with the Japanese;
(i) by 1928 the Kwantung Army in Manchuria had become dissatisfied with the Tanaka policy of collaboration and desired to use force to occupy Manchuria
(ii) That a clique of its officers had planned and plotted the murder (Okada);
(i) That a report made in August 1928 by General Mine of the Tokyo Military Police Unit, showed that the murder was planned by Colonel Kawamoto, senior staff officer of the Kwantung Army (Tanaka Ryukichi);
(ii) That the report revealed that the Kwantung Army wanted to rid itself of Chang Tso-lin and to set up a new state separated from the Nanking Government under Japanese control (Tanaka Ryukichi);
(iii) That this report confirmed to Tanaka what he had heard in 1929 from Captain Ozaki, who had issued the mustering order, and what he had heard in 1935 about the killing and its purpose from Kawamoto;
(c) That Morishima confirmed this testimony;
(a) That the killing of Chang Tso-lin grew out of THE PROGRAM of the Kwantung Army;
(b) That the killing of Chang Tso-lin was the first, though abortive, act in effectuating the conspiracy;
(a) That the above killing was the first overt act by the Army to project itself into the formulation of Government policy;
(b) That it shows that the army was already strongly enough entrenched so as to be able to defy the Government;
(i) That this is evidenced by the fact that the Tanaka Cabinet was forced to resign because it wanted to take strong disciplinary action to maintain discipline in the Army.
I must say I am not at all satisfied with this additional evidence. But before giving my reason for discarding this testimony so much relied on by the prosecution, let us see how far the prosecution case is advanced even if we accept it in toto. The utmost this evidence can establish is that the murder of Chang Tso-lin was the act or a group of Japanese officers of the Kwantung army, that the same was planned by Col. Kawamoto, the then senior staff officer of that army, and that the plan was executed by one Captain Ozaki or Captain Tomiya or both. I am not saying that these matters have been established by any evidence before us. As I shall presently show, the evidence has not succeeded in advancing the case in the least beyond where it was in the days of the Lytton Commission. But even assuming the full effect of the evidence as stated above, the prosecution case of the conspiracy is not in the least advanced thereby. All that we get is that Chang Tso-lin’s murder was planned and executed by a certain group of the Kwantung army officers. There is absolutely nothing to connect this plan or plot with the alleged conspiracy. There is nothing in this evidence to give us any alleged “program of the Kwantung army” and to connect this incident or its plan with that program. There is nothing to show that the army had any plan or design“ to project itself into the formulation of the Government policy”; nothing to indicate or suggest any attempt on the part of the army so to project itself, and nothing to connect the murder of Chang Tso-lin with any such attempt or plan or design.
Planning any murder and executing the same are certainly reprehensible by themselves. But we are not now trying any of the accused for that dastardly act of murder. We are to see what connection this story has with any relevant issue before us.
Chang Tso-lin’s murder was planned, the prosecution tells us, because the Kwantung Army had become dissatisfied with the Tanaka Policy of Collaboration and desired to use force to occupy Manchuria. Nothing, however, could be placed before us to show anything, successful or abortive, which was designed or planned on the footing of this murder. Chang Tso-lin died and in normal course was succeeded by his son. There is nothing to show that anything else was designed, planned or attempted in this respect. Nor is there anything to show that the Army or the plotters considered his successor a more desirable person for their purpose. So far as the evidence goes, absolutely nothing happened or was expected or designed to happen towards the alleged occupation of Manchuria.
The incident stands equally unconnected with the alleged projection into the formulation of the Government Policy. The Tanaka Cabinet fell and the Hamaguchi Cabinet came in. The incident might have indirectly contributed to the fall of the one cabinet and to the accession of the other. But we have been given nothing to show any design, plan or attempt, successful or abortive, in this respect. It is preposterous to suggest that the murder of Chang Tso-lin was planned to cause the fall of the Tanaka Cabinet. There is nothing to show that there was any plan, design or attempt to bring in any particular person or group of persons in the succeeding cabinet.
There is nothing to show that any expectation was entertained or calculation made by the plotters that the succeeding Hamaguchi Cabinet or any other expected or probable Cabinet would be favourable to their alleged program though that calculation of theirs was ultimately crossed. Even the prosecution assertion that “the Tanaka Cabinet was forced to resign because it wanted to take strong disciplinary action to maintain discipline in the army” does not take us anywhere in this respect.
Thus unconnected with either of the suggested limbs of the conspiracy charged, the incident is absolutely irrelevant for the purposes of this case and its introduction in it is only calculated to create some prejudice adverse to the defense by simply adding one more ruthless and dastardly but wholly irrelevant incident to the whole story.
The Lytton Commission, as I have already noticed, reported that “the responsibility for this murder has never been established”. Upto that report the tragedy remained shrouded in mystery, but it gave rise to a suspicion of Japanese complicity.
As to this suspicion, it should be noticed that Chang had no lack of bitter and powerful enemies and that neither Japan nor the alleged plotters stood to gain by his destruction.
Here is an account of the situation to be found in the Survey of International Affairs of 1928 by the Royal Institute of International Affairs, London.
“For sometime before Chang Tso-lin’s death, there had been a sharp division of sentiment and policy in his entourage. The older school were in favour of continuing to take the lead in the Ankuochun coalition against the Kuomintang—a policy which meant spending the resources of Manchuria on military campaigns outside her own borders. The younger school sympathized with the programme of the Kuomintang—particularly, perhaps, in the matter of relations between China and foreign powers—and were in favour of coming to a friendly understanding with them, though they did not contemplate going so far towards unification as to surrender their own local autonomy. In their policy towards the Kuomintang, the younger school had the support of Chang Tso-lin’s son Chang Hsueh-liang, who took control of the Manchurian Government at Mukden on the 20th June, 1928 (the day before the official date of his father’s death); and the young general’s association to power transformed the relations between Mukden and Nanking. When the Nationalist commanders congregated at Peking at the beginning of July, Chang Hsueh-liang sent them a friendly message; and when they destroyed the remnants of Chang Tsung-ch’ang’s army in September, the Manchurian forces co-operated with them against their own former allies. Meanwhile, the Japanese Government had intervened.
“On or about the 18 th July, 1928, the Japanese Consul-General at Mukden, upon being consulted by Chang Hsueh-liang, advised him to pause before coming to an agreement with the Nanking Government; and though this advice was given personally and unofficially, the Consul-General expressed the belief that his Government were of the same mind. This was borne out by a statement made by the Japanese Prime Minister, Baron Tanaka, in an interview with the representatives of foreign Governments at Tokyo on the 25th July; and something in the nature of an ultimatum was delivered to Chang Hsueh-liang in a personal interview on the 9th August by Baron Hayashi, who had been sent on a special mission to Mukden—nominally to attend the funeral of Chang Tso-lin. In this interview, Baron Hayashi was reported to have declared that the unification of Manchuria with the territories under the Kuomintang Central Government would jeopardize Japan's special interests, privileges and acquired rights in the three eastern provinces of China, and that for this reason the Japanese Government desired the Manchurian Government to adopt a waiting policy for the time being. The Baron was reported to have added that, if Chang Hsueh-liang were to override Japan1 s wishes and to hoist the Kuomintang flag, Japan had decided to take a free hand to act on her own initiative, Chang Hsueh-liang appears to have shown recalcitrance; and the Japanese Government refrained from forcing the issue.”
Japan thus gained nothing by Chang Tso-lin’s death and nothing in what followed his death indicates any design on Japan’s part.
But let us see the evidence brought in to supplement the Lytton Report in this respect. As I have noticed above the prosecution relied on the testimony of Baron OKADA, TANAKA Ryukichi and MORISHIMA Morita.
In its summation, the Prosecution introduces Baron Okada as the Navy Minister in the Tanaka Cabinet during whose office the incident took place. This may be slightly misleading as the information which this witness in his testimony claims to have obtained in this respect is not stated by him as having been received while he was such a minister. It should be remembered that after the fall of the Tanaka Cabinet, the Hamaguchi, the Wakatsuki, the Inukai and the Saito Cabinets came in in rapid successions, the last named Cabinet coming in on the 26th May 1932, nearly four years after the incident. Baron Okada was Navy Minister in this cabinet also and whatever knowledge he claims to have of this incident he states as having been obtained by him while in this Saito Cabinet. Perhaps the incident remained equally shrouded in mystery during the lives of the earlier cabinets. Baron Shidehara of the Hamaguchi Cabinet, and Premier Wakatsuki have been examined in this case on behalf of the Prosecution. But apparently they had no knowledge of this plotting. At least they did not tell us anything about it. Inukai Ken, son and secretary of Premier Inukai, has also been examined by the prosecution. He too did not give us anything in this respect.
The testimony of Baron OKADA comprises his statements made out of court and presented to us in the form of two affidavits artd his cross-examination in Court. These affidavits are exhibits 175 and 176 in this case. Exhibit 175 purports to relate to the Manchurian Incident. The other affidavit is stated by the prosecution to relate to another phase of the case.
In his first affidavit the witness states the following:
1. During 1927 and 1929 Japan claimed to have acquired by treaties, agreements, etc., substantial rights and interests in Manchuria;
2. (a) It was the policy of the Tanaka Cabinet to expand and develop such rights and interests to the fullest possible extent through collaboration with Manchurian authorities;
(6) (i) In connection,with this program, Tanaka planned to collaborate with and use Chang Tso-lin, who was then Marshal and defacto ruler of Manchuria;
(ii) Tanaka1 s bargaining and trading power with him lay in the support which Japan might lend to the maintenance of his position of leadership in Manchuria;
(iii) In 1928, when the armies of Chang Tso-lin suffered defeat at the hands of the Kuomintang Army, Tanaka advised him to withdraw his armies into Manchuria before it was too late;
(iv) Chang Tso-lin was obliged to take this advice and was returning to Manchuria when he was killed.