Foreword by Mei Xiaokan and Mei Xiao’ao T H E T O K Y O T R I A L A N D W A R C R I M E S I N A S I A MEI JU-AO The Tokyo Trial and War Crimes in Asia Mei Ju-ao The Tokyo Trial and War Crimes in Asia Mei Ju-ao Translated by Cao Yan, Zhan Jixu, Xu Tianlun ISBN 978-981-10-7403-5 ISBN 978-981-10-7404-2 (eBook) https://doi.org/10.1007/978-981-10-7404-2 The print edition is not for sale in China Mainland. Customers from China Mainland please order the print book from: Shanghai Jiao Tong University Press. ISBN of the China Mainland edition: 978-731-3150-80-6 Library of Congress Control Number: 2017964270 Based on a translation from the Chinese language edition: 东京审判亲历记 by Mei, Ju-ao Copyright © Shanghai Jiao Tong University Press, All Rights Reserved 2018 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the pub- lisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institu- tional affiliations. Cover illustration: The National Archives and Records Administration. This Palgrave Macmillan imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21- 01/04 Gateway East, Singapore 189721, Singapore A O P I M n ld refAce tO nternatIonal IlItary t f e (I) rIbunal for the ar ast Dr. Mei Ju-ao passed away for years. My memory of him awoke when Mei Xiao’ao, his son, came to me with his book, The International Military Tribunal for the Far East (unfinished), and asked me to write a prologue for it. I am pleased to do so both for the reading public and out of my own interest. Although this book remains unfinished, it is still of great signifi- cance because it introduces the establishment and development of the principles concerning crimes of war after World War II. Implementation of these principles throughout the Tokyo Trial further clarified the condem- nation and punishment of aggressive wars. Like the Nuremberg Trial, the Tokyo Trial not only prosecuted conventional war crimes that went against the laws and customs of war as provided for in traditional international law, but also defined crimes against peace and crimes against humanity, and went further to elaborate in great detail the concept of “conspiracy” in aggression. While the four chapters completed by Dr. Mei put more emphasis on the facts and procedures of the Tokyo Trial, this book does contain a general explanation in its Chap. 1 as of the legal basis for punish- ing the Japanese Class-A war criminals. Of course, a general explanation may not replace a penetrating legal analysis, but it can help the readers perceive the starting point and the direction of the Tokyo Trial, especially as one can take a reference to the text of the Tribunal’s final judgment. This is why I say that it is still of great significance although unfinished. Another aspect for which importance should be attached to Dr. Mei’s book is that it reveals a large amount of information on the Tokyo Trial that outsiders do not have access to, which includes the process of organizing the v vi AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR… Tribunal and the coordinative relations among its various departments, the details about the determination of the list of Class-A war criminals and their arrest and interrogation, the seat arrangement of the bench and its internal working system, the organization, duties and working procedures of the prosecution and the defense, the participation of American defence counsels and the significance thereof, and so forth. It is a big pity, however, that the final stage of the Trial, that is, the process of convicting and sentencing the defendants, especially the war criminals responsible for the invasion of China, is not reflected in these four chapters. Dr. Mei may have planned to cover this part in his subsequent chapters, which would no doubt be a fasci- nating story. At the time of the Trial, the KMT government lacked correct comprehension and estimation. They thought since the fact of Japan’s inva- sion of China was undisputable, the Trial must be no more than a formality, with the war criminals punished accordingly, without the victim countries having to provide much evidence. This being a misunderstanding already, to their greater surprise, the United States sent a troop of lawyers to defend the accused, in addition to the fact that seven of the eleven judges came from common law countries, which caused imbalance between the prosecution and the defence in favour of the accused. Although the Tokyo Charter stip- ulated that “The Tribunal shall not be bound by technical rules of evi- dence”, the Tribunal basically adopted the common law procedural rules. Pressured by this situation, China had to on one hand object to the mechan- ical application of highly technical rules of evidence, and on the other hand to race against time, searching for evidence in the greatest possibility, includ- ing relevant telegrams archived in Japan’s Ministry of War. These evidences were presented at the final stage of counter-examination of the defendants and their witnesses, so as to further substantiate the proof of their crimes in China. It paid off finally. All the major war criminals responsible for the war of aggression against China, such as Kenji Doihara, Seishiro Itagaki, Iwane Matsui, Akira Muto and Koki Hirota, were all duly convicted and sentenced to death, with their crimes made well known to the world. As to its practical meaning, China has adopted an opening-up policy since the third plenary session of the Eleventh Central Committee of the Communist Party of China, and the number of foreign-related legal cases have increased dramatically, most of which are taking place abroad. “To know both yourself and your enemy”, we need to learn more about litiga- tion procedures of other countries, especially those of common law coun- tries, for which we are short of materials at present. In Chap. 4 of this book, Dr. Mei elaborated on the trial procedures under the common law AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR… vii system and their applications in practice. Despite any differences between the Tokyo Trial as an international criminal trial and the foreign-related cases we are handling, mostly civil and commercial ones before domestic courts in foreign countries, many procedural rules, and rules of evidence in particular, are equally applicable for the trials in those domestic courts, whether criminal or civil and commercial in nature. Dr. Mei’s book will not only enlighten our research on procedural law in general, but has provided urgently-needed references for dealing with foreign-related cases today. Dr. Mei and I met in Chongqing during the anti-Japanese war. In early 1946, I visited the United States and Britain, conducting a field survey on their judicial systems and practices. When I heard that Dr. Mei would act as a judge in the Tokyo Tribunal, I was very happy about this excellent choice. In early 1947, I was invited to join the Chinese prosecution team in Tokyo. While working in different positions, both of us went through the tortuous process of the Tokyo Trial. It has been 13 years since Dr. Mei passed away. And other Chinese who worked for the Trial are now scat- tered in various places, except for Professors E Lvgong and Wu Xueyi who have also passed away. Mr. Xiang Zhejun, then Chinese prosecutor, is 95 years old and now confined to bed. Mr. Liu Zijian teaches at Princeton University, Mr. Gui Gongchuo at Taiwan University, and Messrs. Qiu Shaoheng, Yang Shoulin, Gao Wenbin, Zhou Xiqing, and Zhang Peide at different universities in Beijing or Shanghai, for years and years as hard- working as they were in the past. Part of Mr. Qiu’s job relates to China’s legal system. Mei Xiao’ao’s visit has reminded me of the events over 40 years ago, which are so vivid in my mind as if they had happened yesterday. To take the opportunity of writing this prologue, I express my sincere hope that these old colleagues of mine stay healthy, and continue to con- tribute to China’s prosperity, and to the world peace and human progress till our last breath. How I wish we could see each other again, recollect the past together and supplement this unfinished writing for Dr. Mei! August 1986 Ni Zhengyu [Ni Zhengyu (1906–2003), joined the Tokyo Trial in 1946–1948 and prosecuted Kenji Doihara, Seishiro Itagaki, Iwane Matsui and other Class-A Japanese war criminals. He was appointed as an associate fellow with the Institut de Droit International in 1991. He passed away in 2003 at the age of 97.] A O P I M n ld refAce tO nternatIonal IlItary t f e (II) rIbunal for the ar ast Dr. Mei Ju-ao, my dear friend, has passed away for more than ten years. Now, his posthumous work International Military Tribunal for the Far East is published and made known to all, which is a blessing for the legal circle in China. Dr. Mei dedicated his whole life to the law. He studied law in early years and, at the age of twenty-four, earned his J.D. from the University of Chicago. After returning to China, he engaged in legal education and took part in legislative work. In 1946, as the Chinese judge, he partici- pated in the trial of major Japanese war criminals in the International Military Tribunal for the Far East in Tokyo, which lasted for three years. On the eve of the founding of new China, the KMT government appointed him as Minister of Justice, but he resolutely refused to assume office, and took a personal risk to return to Beijing from Hong Kong. After that, he served as a legal adviser to the Ministry of Foreign Affairs until his death. During this period, he attended many international conferences as an expert in law and diplomacy. Dr. Mei made a great deal of contributions to law in his life, while his work in the International Military Tribunal for the Far East constituted one of the most important ones. The trial of war criminals, as pointed out by Dr. Mei, “is an important event in international life after the Second World War and a pioneering undertaking in human history.” Learning a lesson from the failed attempt after World War I and in order to succeed this time, the major allies during World War II repeatedly affirmed the principle of punishing war criminals in several agreements. Thus, two international military tribunals were set up after the war, in Nuremberg, Europe and Tokyo, the Far East, for the ix x AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR… trial of war criminals. The two tribunals successfully completed their tasks in about one year and over two years respectively, which was a great victory. From the perspective of international law, war crimes and war criminals are new concepts established through the Nuremberg and Tokyo trials. Their establishment demonstrates a new development of international law, especially the law of war. For a long time, there has been a distinction between just wars and unjust wars in international law, while in modern times this distinction is expressed as the difference between wars of aggres- sion and wars against aggression. Although, in the strict sense, rules of international law concerning such distinction have not yet been well formed, condemning wars of aggression has long become part of the legal consciousness of mankind and part of the new content of international law. The punishment of war crimes and war criminals is derived from the principle of differentiating wars of aggression and wars against aggression and the principle of condemning wars of aggression, which, in turn, pro- motes the development of such principles so that their status in interna- tional law has been confirmed. As such, the two trials of war criminals following World War II, i.e., the trials in Nuremberg and Tokyo, marks indelible achievements in the history of development of international law. It is very meaningful for Dr. Mei to write down his personal experience of participation in the trial of war criminals in the International Military Tribunal for the Far East. He started to write this book in 1962. Unfortunately, once the “Cultural Revolution” broke out, his writing plan was brutally interrupted. Before his death in 1973, he no longer had the chance to continue writing. Therefore, this book represents an unfinished draft with only four chapters. However, despite being unfinished, the four chapters have discussed many important issues such as the establishment of the Tribunal and its jurisdiction, the Charter and organization of the Tribunal, the arrest and prosecution of major Japanese war criminals, the trial procedures of the Tribunal, and so forth. This book is rich in materials and deep in analysis. It is a valuable book and can serve as an important reference book for the study of international law and international politics. Books about the International Military Tribunal for the Far East and the trials of war criminals which bear as great significance as this one are rare even in the world. As a jurist, it was a glorious and arduous task for Dr. Mei to participate in the trial of international war criminals. With great efforts and after over- coming tremendous difficulties—lack of attention and support from the AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR... xi KMT government, delay and obstruction by the international reactionary forces, etc.—he finally succeeded in making the International Military Tribunal for the Far East pass a judgment against the major Japanese war criminals that was basically consistent with the requirements of justice. This was very much commendable. Dr. Mei Ju-ao and I became friends after 1949. Just a few days after he returned to Beijing, we attended together the inaugural meeting of the Chinese People’s Institute of Foreign Affairs. At that meeting, Premier Zhou Enlai praised his work and pointed out that “he has done a great thing for the people and won honour for the country”, which was a best appraisal of one important work Dr. Mei had undertaken in his life. May 25, 1986 Wang Tieya [Wang Tieya (1913–2003), outstanding jurist of international law in modern China, professor at Peking University, and at Beijing Institute of Politics and Law. He also served as director of the Institute of International Law at Peking University. In 1987, he was elected Academician of the Academy of International Law. He passed away in Beijing on January 12, 2003 at the age of 90.]