Hirohito and the Making of Modern Japan (152 page)

VI

The threat of forced abdication had hung heavily over Hirohito before, during, and long after the war crimes trial. The danger came from his immediate family members who wanted to have a voice in political affairs, and from all who believed that there are moral standards applicable
only
to leaders of nations.

Prince Takamatsu was one of several family members who wanted Hirohito out. About a year after Japan's formal surrender, on September 20, 1946, he confided to his diary that it was unwise for the emperor to remain on the throne simply because he had accumulated years of experience as monarch or because his abdication would disturb MacArthur.
⁵¹
Anticipating a regency but unable to openly promote his own candidacy, he endorsed the idea of Chichibu as regent. Earlier, on September 30, 1945, he had written that Prince Chichibu's return to the capital after a long convalescence “means he will meet people and when the time comes he could become regent.”
⁵²
Takamatsu, clearly believing Hirohito was not licensed to stay on the throne permanently, maintained a steady stream of criticism of him. Other family members, such as Princes Mikasa and Higashikuni, also supported early abdication.

Soon several prominent intellectuals, such as the liberal philosopher Tanabe Hajime, publicly called on Hirohito to “muster the courage to express a more sincere sense of responsibility” by abdicating.
⁵³
The president of Tokyo Imperial University, Nambara Shigeru, also asked him to step down. Among the first to state the moral case against the emperor from the standpoint of soldiers who
had laid down their lives for him in battle was the famous poet Miyoshi Tatsuji. There will “be no morality in the world” unless the emperor abdicates “as quickly as circumstances permit,” Miyoshi declared in a series of influential articles during the spring and into early summer of 1946:

Vice Grand Chamberlain Kinoshita Michio rightly perceived the long-term nature of this threat. In an unsigned, undated memorandum in his diary, probably written in early spring 1946, on Imperial Household Ministry stationery, Kinoshita (or someone who shared his ideas) wrote that even though the United States and MacArthur had decided to maintain the monarchy,

By July 1946 even Hirohito's most enthusiastic defender in GHQ, General Fellers, was urging him to repent to the nation in the interest of preventing long-lasting harm to the monarchy.
⁵⁶
Meanwhile, Kido, in detention at Sugamo Prison, mulled over the question of Hirohito's war responsibility but put off recommending abdication until his own ordeal and the occupation itself had ended.

 

On November 4, 1948, around the time the Communist armies of Mao Tse-tung captured Mukden and Stalin was challenging the “Truman Doctrine” by blockading Berlin, the Tokyo trial drew to a close after a six-month recess.

Judge Webb read out in open session the majority judgment, but first reviewed the law of the Charter—issued and later amended by MacArthur—which defined three broad categories of crime.
⁵⁷
The initial category was “the planning, preparation, initiation or waging of a…war of aggression, or a war in violation of international law, treaties, agreements…or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” Following Nuremberg precedent, the waging of such a war was termed “crimes against peace.” During the trial it had denoted mainly violations of the Covenant of the League of Nations, the Nine-Power Treaty concerning the sovereignty, independence, and territorial integrity of China, and the Kellogg-Briand Pact renouncing war of aggression as an instrument of national policy. Unlike conventional war crimes, “crimes against peace” could be committed only by policy makers.
⁵⁸
The prosecution had argued not that aggressive war per se was illegal but only that every act of aggressive war with which Japan was charged was covered by
treaties to which Japan was a party. Because pursuit of this charge had forced the prosecutors to investigate the causes of the Asia-Pacific War, a hornet's nest of unresolved historical debate had opened, particularly after the defense was not allowed to introduce in evidence documents having to do with communism in Asia. On the other hand, neither at Nuremberg nor Tokyo were death sentences handed down solely on the basis of “crimes against peace.”

 

The second, less controversial category of offense was “violation of the laws or customs of war.” This offense was based upon the Hague and Geneva Conventions on the laws of land warfare and the treatment of prisoners of war, respectively. Both had come to be recognized as customary law embodying minimum standards of humane conduct, applicable to all states engaged in international armed conflict. Defense attempts to rebut charges of “violations of the laws and customs of war” invariably fell flat in the face of the enormous evidence the prosecution marshaled to prove Japanese criminality in the prosecution of war.
⁵⁹

“Crimes against humanity” was the third category. The term (which had first emerged in World War I in connection with Turkish atrocities against Armenians) was defined exactly as in the four-nation London Charter on which the IMT at Nuremberg was based. It denoted “murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds….” These crimes, mainly against the civilian population, “were punishable under international law only insofar” as they were committed in connection with war crimes. At Tokyo the prosecutors, following the fifty-five count indictment, highlighted the catchall crime of murder taken broadly “as resulting from illegal warfare confined to aggressive attacks or in violation of treaties when the nations attacked were at peace with Japan.”
⁶⁰
“Murder” so taken was an enormous umbrella that could and did cover both the Japanese attack on Pearl Harbor and the “rape of Nanking.”

Judge Webb went on to discuss the conduct of the trial and the facts of the individual cases. Though the tribunal found the Japanese army guilty of usurping power by intimidation and assassination, it exonerated the Japanese people for the behavior of their armed forces. It also greatly reduced the number of counts in the original indictment that were considered to have been proved. Webb concluded by summarizing the majority view “that the charge of conspiracy to wage [a succession of] aggressive wars has been made out…these acts are…criminal in the highest degree.”
⁶¹

He then handed down guilty verdicts on all twenty-five principal defendants. T
j
received the death sentence, along with five other generals: Itagaki Seishir
, Kimura Heitar
, Doihara Kenji, Matsui Iwane, and Mut
Akira. One civil official, former diplomat and prime minister Hirota K
ki, was also sentenced to die. After MacArthur had dismissed all appeals for a stay of execution, seven of the defense lawyers appealed to the U.S. Supreme Court. Their ground was constitutional: The Tokyo tribunal was really an American court established without the consent of Congress; it had derived, from and been conducted entirely on the basis of, President Truman's executive powers. Shortly before the Justices heard their “appeal,” an angry MacArthur told British representative Alvary Gascoigne, that even if the Supreme Court issued a writ of habeas corpus, he would “ignore it” and “entrust the matter to the Far Eastern Commission.”
⁶²
On December 15, the day before the case was argued at the Supreme Court, the Far Eastern Commission hastily announced that the tribunal “is an international court appointed and acting under international authority.”
⁶³
Five days later the Court ruled that it had no power or authority to set aside the sentences.