William Patrick and “Crimes Against Peace” at the Tokyo Tribunal, 1946–1948
| Author | Sellars Kirsten |
| Published date | 01 May 2011 |
| Pages | 166-196 |
| DOI | 10.3366/elr.2011.0019 |
| Date | 01 May 2011 |
After the Second World War, the victorious allies convened the International Military Tribunal for the Far East to punish Japan's leaders for crimes against peace and other war-related crimes. The crimes against peace charge had proved controversial at the Nuremberg Tribunal, and the sponsoring powers made considerable efforts to ensure that the Tokyo judgment reinforced the Nuremberg determination on it, thereby investing it with greater legal credibility.
The scope and significance of these efforts has been largely unacknowledged, as has the central role in them of the British member of the court, William Patrick, a Senator of Scotland's College of Justice. Although he was a pivotal figure in the debates about the validity of crimes against peace, Patrick did not dwell on his experience in Tokyo. His
“Patrick, Rt. Hon. Lord”,
Patrick's role demands closer examination, however, because it proved crucial to the judgment at Tokyo. He campaigned for unalloyed support for the main tenets of the Nuremberg Judgment, and when that support was not forthcoming, helped to forge a majority faction to ensure that they were not abandoned. Finally, and most importantly, he insisted that crimes against peace and conspiracy to commit them were retained as the central elements of the majority's judgment.
After Japan's surrender on 15 August 1945, General Douglas MacArthur, the Supreme Commander of the Allied Powers, and his eponymous occupation administration (SCAP) took control of the country. In September the US State-War-Navy Coordinating Committee gave the go-ahead for the establishment of a Tribunal to try Japan's war leaders, and the following month the US State Department distributed policy papers to the eight other Allied signatories of the Instrument of Surrender. Finally, on 19 January 1946, MacArthur issued a Special Proclamation declaring the establishment of the Tribunal. He invoked two sources of authority: the Potsdam Declaration, which had decreed among other things that “stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners”;
United States Department of State,
International Military Tribunal for the Far East [ed R J Pritchard],
The Charter accompanying the Proclamation announced the formation of the court for “the just and prompt trial and punishment of the major war criminals in the Far East”.
International Military Tribunal for the Far East,
In other respects the Tokyo Charter drew heavily on the Nuremberg Charter's ordering and wording of the charges: first, crimes against peace, then war crimes, and then crimes against humanity. The focus on crimes against peace in both charters was not motivated solely by a desire to promote peace and security. As some observed at the time, the Americans were interested in criminalising the Germans and Japanese for starting the war in order to justify, respectively, breaching their own neutrality against Germany, and succumbing to military defeats at the hands of Japan. As Bernard Röling, the Dutch judge at Tokyo, later stated:
B V A Röling and Antonio Cassese (eds),
In Nuremberg [US Chief Prosecutor Robert] Jackson wanted to vindicate American deviations from, if not the actual violations of, the laws of neutrality. In Tokyo MacArthur wanted to avenge the attack on Pearl Harbor, and in doing so, to take the blame off the American government and the American military commanders. So at the roots of both trials you can find reasons that had no relation whatsoever with the idea that starting an aggressive war is an international crime for which individuals may be punished.
Significant measures were taken to ensure that Tokyo backed Nuremberg over this troublesome charge, from British Associate Prosecutor Arthur Comyns Carr's overwrought Indictment, which attempted to buttress the crimes against peace charge with the conspiracy and murder charges, to American Chief Prosecutor Joseph Keenan's attempts to keep the focus on aggression and expedite the trial by reducing the time allocated to war crimes. There was no gainsaying the importance of all this effort: as the Foreign Office's senior legal advisor Eric Beckett minuted, a failure to win the case on aggression “would
National Archives, UK (hereafter NA): FO 371/66552: Beckett, 5/5/47.
The Tokyo judges were thus doubly bound: by the strictures of the Charter and by the obligation to produce a judgment that would buttress the Nuremberg determination on its most contentious charge. This obligation diminished the judges' autonomy and exacerbated the tensions that at the time seemed to threaten the entire enterprise.
Whatever the difficulties over crimes against peace, British officials were far more favourably inclined towards a trial of the Japanese then they had initially been towards a trial of the Germans. Throughout the war, they had argued for the political disposal of the Axis leaders in order to avoid the problems associated with the Leipzig trials after the First World War, and to encourage the rapid return to peace after the Second World War.
NA, LCO 53/78: Eden, “Draft Cabinet paper: treatment of war criminals”, c June 1942.
Up until June 1945, they had particularly objected to American proposals to bring charges of crimes against peace, which they maintained would entail the enactment ofNA, FO 371/51019: Dean, 26/4/45.
The Americans overrode these objections, and by the time the State Department mooted the Tokyo Tribunal in October that year, there was less resistance to the idea. Despite some quibbles about the organisation and scope of the trial, Whitehall officials believed that participation in it would enhance Britain's prestige in the Far East. As Foreign Secretary Ernest Bevin explained: “This trial is of considerable significance to us, because of the important role which we play in the Far East, and also because of the tremendous effect which the Pacific war had on large numbers of British subjects and on important British territories.”
NA, LCO 2/2986: Bevin to Patrick, 7/2/46.
When Whitehall received the American call to propose a British judge, a discussion ensued about suitable candidates.The Attorney-General Hartley Shawcross toyed with various possibilities: they might perhaps appoint an “Indian” judge such as Sir Gilbert Stone, or the UK-domiciled judge Harold Morris, or “some retired Colonial Judge” – just so long as British prestige vis-à-vis the Americans was maintained.
NA, LCO 2/2986: Shawcross to Jowitt, 11/1/46.
But the Lord Chancellor William Jowitt, mindful of the additional demands placed upon the English judiciary as a consequence of Geoffrey Lawrence and Norman Birkett serving at Nuremberg, suggested instead that they “explore the possibility of Scotland”.NA, LCO 2/2986: Jowitt to Shawcross, 14/1/46.
To this end, Jowitt sounded out Hugh Macmillan and Lord Thankerton on suitable members of the Outer House of the Court of Session: “Their first choice,” Jowitt reported back to Shawcross, “would be McIntyre – now Lord...
To continue reading
Request your trial