JAPANESE DENY WAR CRIMES

Gisborne Herald, Volume LXXIV, Issue 22240, 28 January 1947, Page 3

JAPANESE DENY WAR CRIMES

DISMISSAL SOUGHT ACTS “JUSTIFIED” "TRIAL ULTRA VIRES" JUDGE REFUSES CLAIMS (]0 a.in.) TOKYO, Jan. 27. In opening ihe defence in the trial of major Japanese war leaders. American and Japanese counsel challenged General D. NacArtlnir’s authority to create an international military tribunal and declared that Japan was forced to fight- a war of self-defence. They moved that {lie case he dismissed. Treatment of Prisoners Referring to the atrocities committed by Japanese troops, the defence counsel said Japan had never ratified the Geneva Convention on the treatment of prisoners of war, although Japan told the world after war broke out that she would abide by the general outline of the convention.

Regarding the Pearl Harbour attack, the defence contended that no international law was broken because the United States had been in a de facto state of war with the Japanese for. several vears as a result of sending supplies to China since 1927. together with economic, financial and military assistance. Claiming that no law exists authorising any international tribunal to sit in judgment on the moral conduct of the individuals of a sovereign nation, the defence disputed General MacArlhur’s right to issue the charter of April 26, 1946, which has become the legal foundation of the 'tribunal. The attorneys asserted that General MacArthur, as an American citizen, was bound by the United States constitution and was not permitted to accept any office or title from foreign States without the consent of Congress. They said that not the slightest effort had been made to obtain approval, or ratification, by Congress of General MacArthur's action in creating a tribunal representing 10 foreign nations. Powers of MacArthur “Thus the picture stands of a general of the United States Army, who without authority establishes an alleged body of international law carrying the possibility of capital punishment, and who reserves the right individually to review any sentence rendered by the tribunal which, in his opinion, did not accord with his notion of a fair trial,” stated one attorney. Tire defence said the Potsdam declaration was nothing more than an ultimatum to surrender, and the Japanese instrument of surrender was “nothing more than capitulation subject to certain conditions.” Counsel denied that there was any infringement of international law in the invasion of China and, regarding Manchuria, asserted that Japan occupied a special historical and incontrovertible position there which she was entitled to defend. , The defence also claimed that the prosecution had introduced no substantial evidence of conspiracy by the accused to commit the crimes charged against them. It added that the accused were being tried illegally for breaking laws created after the acts had been committed. On behalf of 11 of the accused the defence urged that the charges be dismissed because “a fair trial is impossible.”

rower Not Seized

The defence also argued that in distinction from those tried at Nuremburg, the Japanese accused had not seized power, but were bona fide members of 12 Cabinets from 1928, and acted only as duly appointed officials.

It was further claimed that hearsay evidence and affidavits had been admitted, which were prejudicial to a fair trial under international law and under the laws of the participating countries.

Referring to the first 36 indictments grouped as crimes against the peace, the defence asserted that they were invalid on the ground that all the treaties cited reserved to each signatory nation the right to determine what constituted war in self-defence. The defence added that all the signatories of the Kellogg-Briand Treaty demanded such a stipulation, and Japan had gone to war in self-defence because of military encirclement by the United States, Britain, China and the Netherlands. The next 16 indictments alleging murder were claimed to be invalid for the same reasons, and also on the grounds that the prosecution had failed to show a direct connection of any accused with an express order, except regarding his duties as a Government official.

Ruling by Judge

Finally, regarding the conventional war crimes alleged in the last three indictments, the defence contended that the prosecution had failed to show that the accused were personally responsible for the acts of Japanese commanders in the field, who had control of prisoners of war and internees. Mr. Justice Webb refused to hear the defence motion challenging General MacArthur’s authority to establish the tribunal. He said: “There is no need to challenge publicly the position of the Supreme Commander. That is undesirable in this place and in these circumstances unless it becomes necessary in the interests of justice. Mr. Justice Webb added that the defence would file the other motions and present the arguments “as a respectful legal document, not as a political harangue.”

jWAR CRIMES TRIAL l IN TOKYO