Foreign Relations of the United States: Diplomatic Papers, 1945, The British Commonwealth, The Far East, Volume VI

740.00116 PW/9–145

The United States Commissioner, United Nations War Grimes Commission (Hodgson), to the Secretary of State

No. 217

London, September 1, 1945.
[Received September 13.]

Sir: I have the honor to transmit the following document for the information of the Department:

Document C.145 (1), 29th August, 1945.

Summary Recommendations Concerning Japanese War Crimes and Atrocities.

Reference is made to Commissioner’s Despatch 196 and Embassy’s cable 8298 of August 16 and Department’s cable 7493 of August 31.¹⁰

Document SFEC I, which is the draft basis of discussion, was considered preliminarily by a Special Committee appointed for that purpose on August 13th. H. E. Dr. V. K. Wellington Koo was elected chairman of the Committee. The committee adjourned its consideration of the document until August 16th, with the view of finally adopting proposals and presenting them to the Commission for adoption at a special meeting of the Commission to be held on August 17th. At my request this plan was abandoned and the committee’s meeting was postponed until August 21st. Thereafter, I again proposed postponement of action and the committee’s meeting fixed for August 21st was cancelled. When I was informed that a meeting of the committee would be held on August 27th, I opposed this action upon the ground that the committee should wait until the final surrender terms were made known and the Commission could act with knowledge of such terms. Furthermore, that most of the recommendations in the draft basis of discussion had already been incorporated into general recommendations, such as documents C–52(1) and C–122, which were as applicable to the Far East and Pacific as to Europe. However, Lord Wright and his assistant Mr. Oldham insisted that the document be considered at a meeting to be held on August 27th and the former called the meeting and placed the subject on the agenda. Both appeared to fear criticism unless the Commission acted and the latter intimated that he was acting at the instance of his Government. In the absence of instructions from the Department, I did not feel justified in formally moving for a postponement at the meeting of the committee held on August 27th or of the Commission held on August 29th. After revising the draft it was adopted by the Committee. It was reported to the Commission on August 29th by H. E. Wellington Koo who moved its adoption.

Paragraphs I to III of the enclosed document concern general policy, while the balance of the document relates to the mechanics of placing the policy recommendations into execution.

The first three paragraphs are an adaptation of the principles stated in the Moscow declaration of November 1st, 1943. These principles have been followed by the Commission throughout its existence, and were formally adopted in document C–52 (1).

Paragraph IV is generally the same as document C–122. There are certain amplifications and changes, the noteworthy ones being incorporated into subparagraphs d, e, f and h.

Paragraph V was substantially modified by the committee. The last two sentences of the draft were deleted upon my motion so that the ten Governments mentioned in the draft will not be entitled to appoint prosecutors should the recommendation be favorably considered by the Governments.

Likewise, paragraph VI was radically revised by deleting most of the details concerning the proposed International Tribunal. These details, at my insistence, were left to the discretion of the Supreme Commander to be taken care of by rules.

It will be noted that the recommendation contained in paragraph VI gives no proportion for the representation on the tribunal. Thus, its members may be appointed in any proportion which the Supreme Commander believes advisable. Inasmuch as the recommendation provides for a five member court and ten Governments are named, in my opinion the Supreme Commander may select them from the forces of the mentioned Governments in any proportion.

It will also be noted that in subparagraph (b) or Paragraph VI it is recommended that the law to be applied should be “generally” the law in respect to crimes against peace and crimes against humanity defined in the Inter Allied Agreement.¹¹ This wording was suggested by Ambassador Koo.

The note of the Secretary-General otherwise explains the document.

Respectfully,

Joseph V. Hodgson

Lt. Col., JAGD, AUS

[Enclosure]

United Nations War Crimes Commission Document

C. 145 (1)

[London,] 29 August, 1945.

Summary Recommendations Concerning Japanese War Crimes and Atrocities

Note by the Secretary General

In circulating the attached Recommendations the Secretary General, on instructions from the Commission, begs to call attention to the explanations and observations made by His Excellency Dr. Wellington Koo in his oral report to the Commission on 29th August. This report was in the following terms:

“The Special Far Eastern and Pacific Committee has completed its examination of the document which I mentioned in my oral report to the Commission on 15th August. It has drawn up the recommendations circulated in Document C.145, which as Chairman of the Committee I now submit for the Commission’s approval.

These recommendations are expressed in summary form. This is partly because the authorities to whom they are addressed must obviously be responsible for the details of their application. It is also due to the fact that the recommendations do not contain entirely new proposals. They embody with appropriate changes proposals made by the War Crimes Commission for the European theatre of war, measures taken by the military authorities in that theatre and provisions contained in the Inter-Allied Agreement of 8th August 1945, for the Prosecution and Punishment of Major War Criminals of the European Axis.

The Committee submits the recommendations with the proviso that having been drawn up without knowledge of the terms of surrender to be imposed on Japan, they may require reconsideration by the Commission if those terms should be found to be in any way inconsistent with them.”

[Subenclosure]

Summary Recommendations Concerning Japanese War Crimes and Atrocities

Adopted by the Commission on 29th August, 1945

The Governments of the United Nations have repeatedly protested against and denounced the monstrous crimes and atrocities of which the Japanese are guilty, and have declared that those responsible shall not escape retribution.

The United Kingdom, the United States and China in the ultimatum issued at Potsdam on July 26, 1945,¹² stated:

“… stern justice will be meted out to all war criminals, including those who have visited cruelties on our prisoners.”

These crimes and atrocities consist not alone of individual outrages. They are crimes and brutalities deliberately planned and systematically perpetrated throughout the Far East and Pacific areas. In consummation of their evil plan, the Japanese treacherously launched wars of aggression without ultimatum or declaration. They openly and flagrantly violated the solemn obligations which States, including their own, had undertaken by treaty or custom. They refused the ordinary protection of the law to the inhabitants of the countries they invaded. They did not respect family honour, the lives of persons, as well as religious convictions and practices. Inhabitants of countries which they overran have been ruthlessly tortured, murdered and massacred in cold blood; rape, torture, pillage, and other barbarities have occurred where their forces have operated; and cities have been wantonly destroyed and entire countrysides devastated for no military purpose. Despite the laws and customs of war and their own assurances, prisoners-of-war and other nationals of the United Nations have been systematically subjected to brutal treatment and horrible outrages calculated to exterminate them. These barbarities include massacre, murder, torture, starvation and other ruthless oppressions.

Having in view the foregoing, and in order to effect the practical measures to bring to justice the persons responsible, the Commission recommends:

I

That those Japanese who have been responsible for the plans or policies which resulted in these abominable crimes and atrocities should be surrendered to or apprehended by the United Nations for trial before an international military tribunal. These individuals and officials should include those in authority in the Government, in the military and police establishments, in the secret societies and other criminal associations, and in the financial and economic affairs of Japan who by all civilised standards are provable to be war criminals. The case against these major criminals is that they have devised, set in motion and carried out the criminal plans and enterprises which incited or resulted in the aggressions, cruelties and brutalities which have outraged the civilised world. All of these barbarities are flagrant violations of international law, including the laws and customs of land and naval warfare. The persons to be charged should be determined by the rule that all who participate in the formulation or execution of a criminal plan involving multiple crimes are liable for each of the offences committed and responsible for the acts of each other.

II

That those Japanese holding key-positions in the civil, military or economic life of Japan who, perhaps, did not devise or set in motion plans which resulted in these crimes and barbarities, but nevertheless directed the carrying out of such plans within Japan or in the territories of more than one of the United Nations, should be surrendered to or apprehended by the United Nations for trial before an international military tribunal. This category of criminals includes those individuals and officials, usually in key-positions in the Government, who have willingly planned the details of and put into execution the monstrous schemes of the Japanese leaders. It also includes those brutal and ruthless criminals who, both inside and outside Japan, have been guilty of mass criminality towards the nationals of many of the United Nations. Among such persons were those in charge of certain prisoner-of-war and civilian internment camps where the people of many nations have been starved, tortured, murdered or otherwise atrociously maltreated.

III

That those Japanese who have been responsible for, or have taken a consenting part in the crimes or atrocities committed in, or against the nationals of, a United Nation should be apprehended and sent back to the countries in which their abominable deeds were done or against whose nationals crimes and atrocities were perpetrated in order that they may be judged in the courts of those countries and punished.

IV

That a Central War Crimes Agency be established and maintained in Japan by the military authority and adequately staffed with investigators, detectives, lawyers and other technicians selected from the United Nations, to perform the following duties:

(a) To investigate all war crimes planned, directed or perpetrated inside Japanese territory;

(b) To gather all evidence inside Japanese territory relating to Japanese war crimes and atrocities wherever committed;

(c) To transmit to the United Nations War Crimes Commission or its Sub-Commissions evidence of war crimes detected by it, evidence of war crimes committed by persons whose names are not yet on the lists of the Commission or its Sub-Commissions, or evidence of crimes which point to the existence of a general enterprise or pattern;

(d) To establish and maintain a register of all Japanese war criminals wanted or apprehended by it or any United Nation, or tried by any United Nation or the International Military Tribunal. Each United Nation should promptly notify the Agency of all war criminals wanted, apprehended or tried by it, and the Agency should circulate to each Government and the United Nations War Crimes Commission and its Sub-Commissions lists of such criminals. The register should be similar to that maintained by the Central Recording Office of War Criminals and Security Suspects in the European Theatre of Operations;

(e) To establish and maintain a Central War Crimes Evidence Centre to which should be sent all evidence of war crimes secured by any Government or Agency. The evidence should be indexed and be open to the examination of the representatives of any interested United Nation Government. These representatives should be given free access to the records and should be permitted to make certified copies of such papers as they may require;

(f) To arrange for the apprehension and detention of all Japanese war criminals in Japan whose names or identifying data are discovered by it or are furnished by the United Nations War Crimes Commission and its Sub-Commissions or any United Nation Government;

(g) To notify the United Nations War Crimes Commission and its Sub-Commissions and the Governments of all war criminals so apprehended;

(h) To arrange for the surrender to the interested Governments any of the Japanese war criminals mentioned under III above, who are apprehended in Japan and whose surrender is requested by a United Nation Government. In ease a war criminal is wanted by two or more Governments, the Agency should decide the terms of surrender;

(i) To co-operate with the United Nations War Crimes Commission and its Sub-Commissions, the Central War Crimes Prosecution Office and the interested United Nation Governments in all matters regarding Japanese war crimes;

(j) To maintain branch offices throughout the Far East and Pacific areas to receive evidence and other information concerning war crimes and war criminals, and to co-ordinate its work with that of the National War Crimes Offices.

Representatives from each of the National Offices concerned, acting as liaison officers, should, if desired, be attached to the Central War Crimes Agency or to any branch. They would be invited to take charge, and, in conjunction with the Central War Crimes Agency, to investigate war crimes committed in or against the nationals of their own countries.

All of the military forces and other agencies of the Governments should co-operate with and assist the Central War Crimes Agency in the discharge of its duties.

V

That a Central War Crimes Prosecution Office should be established and maintained in Japan, adequately staffed to prepare and file the charges, to collect, analyse and sift the evidence, and to present to an International Military Tribunal the cases of the war criminals mentioned under I and II above.

VI

(a) That the Supreme Commander of the United Nations military forces or any Control Council or other Authority in Japan should appoint one or more International Military Tribunals for the trial of the war criminals mentioned under I and II above, each of which Tribunals should be composed of five members. The members should be selected and appointed on each Tribunal, after designation by their respective Governments, from the military forces of Australia, Canada, China, France, India, the Netherlands, New Zealand, the Union of Soviet Socialist Republics, the United Kingdom and United States. The Appointing Authority should adopt rules for its procedure.

(b) The Tribunal should have jurisdiction to try any of the war criminals mentioned under I and II above, who are charged with any of the crimes and atrocities which the Japanese have perpetrated. The law to be applied by the Tribunal should be the laws and customs of war, and generally the law in respect to crimes against peace and crimes against humanity defined in the Inter-Allied Agreement of August 8th, 1945, applicable to the major war criminals of the European Axis.

VII

That the war criminals mentioned under III above, upon apprehension, should be promptly surrendered to the countries in which or against whose nationals they committed their crimes unless they are wanted as accused or witnesses in any trial before an International Military Tribunal. In the latter event, their surrender should be deferred until the conclusion of such trial or immediately effected upon such terms as may be agreed upon.

VIII

That His Majesty’s Principal Secretary of State for Foreign Affairs in the United Kingdom¹³ be requested to convene as soon as possible a conference to carry out such of the foregoing recommendations as may require implementation.

10. Despatch 196 and telegram 7493 not printed.
11. Agreement signed at London on August 8, 1945.
12. Conference of Berlin (Potsdam), vol. ii, p. 1474.
13. Ernest Bevin.