Supreme Commander (23 page)

By these two trials MacArthur firmly established the principle of command accountability. On a battlefield this makes sense. But in a situation where the commanding general is far removed from the front and responsibilities are divided (as in the Yamashita case), the issue becomes murky. What about field generals who disobey written orders and conduct the actual atrocities? Is it fair to indict a senior commander if he did not order atrocities, did not know about them, or even lacked the means to stop them? By MacArthur's logic, violations of the Hague Convention, the Geneva Conventions, and other international codes of warfare could be traced up to a high-level commander if such commander had responsibility and did nothing to cure these violations. This far-reaching doctrine was subsequently applied in the 1990s to dozens of trials in the international tribunal for the former Yugoslavia, and also adopted by the International Criminal Court in The Hague in 2002.

However, what might therefore be called the MacArthur principle of command accountability remains unresolved to this day, as demonstrated by My Lai in Vietnam and Abu Ghraib in Iraq. If MacArthur had been running the U.S. Army in 2006, presumably a top general would have been put on trial for not knowing what was going on at the Abu Ghraib prison.

 

MACARTHUR WAS NOT
present at the prosecutor's opening presentation. But his seven-year-old son, Arthur IV, was, eager to catch all the drama. The chief prosecutor, U.S. lawyer Joseph Keenan, strutted around the room, throwing thunderbolts. Referring to the Yamashita decision, he announced: “Individuals may be punished by a military tribunal for violations of international law, which, even though never codified by an international legislative body, have been sufficiently developed and crystallized to make them cognizable by courts of justice.” He continued: “The personal liability of these high-ranking civil officials is one of the most important, and perhaps the only new question under international law, to be presented to this tribunal.”

Not so, thought Japanese defense counsel Kenzo Takayanagi. A year later, when he finally got his chance to make the defense presentation, he said that any concept that crimes against peace incur personal responsibility is “perfectly revolutionary. . . . It is the general principle of the law of nations that duties and responsibilities are placed on states and nations and not on individuals.”

One can only imagine MacArthur's reaction to such groupthink talk of personal immunity. The supreme commander took this trial very seriously. In his instructions to the American prosecutors, he insisted that no case be brought unless there was absolute confidence there would be a conviction. He wanted this trial to be over in three months as everyone expected. He also wanted no embarrassing acquittals that would make the prosecutors look like fools. The accounts of Japanese atrocities in Asia and the Pacific were so abundant and self-evident that anyone would conclude beyond a shadow of doubt that these incidents were a pattern, not an aberration, and that Japan had engaged in a deliberate and consistent program of destruction and brutality.

MacArthur did have one concern, however, and it was a major one: that the emperor not be dragged into this trial. Back in mid-September 1945, Prince Naruhiko Higashikuni, a distant uncle of the emperor and temporary prime minister for fifty-four days, had given a press conference. “The most interesting questions,” said a
New York Times
editorial, “relate to the Emperor's role at the outset of the war.” The newspaper was not about to let Higashikuni—much less his esteemed nephew—off the hook:

The Premier [Higashikuni] asserts that the Emperor was “deceived.” If so, it took the Emperor three and a half years and a complete Japanese defeat to discover the deception and to break with the deceivers. The Premier denies that the Emperor is a war criminal; even a negative association of the Japanese god with crime must set the Japanese thinking. But if he isn't, he is at the very least an accomplice after the fact. And the accomplice is usually regarded as no less guilty than the original perpetrator.

Complicity would become a major issue in the Tokyo War Crimes Trial, formally called the International Military Tribunal for the Far East (IMTFE). The first count of the indictment read as follows: “All the accused . . . participated . . . in the formulation or execution of a common plan or conspiracy, and are responsible for all acts performed by any person in execution of such plan.”

“Responsible”—that was the key issue. The question then became: who is responsible? How far up or down the command line does responsibility go? Organizations vary greatly in their fluidity: some are tightly controlled, others are very loose. Complicating this question is the confusion caused by war, where organizational discipline can fall apart, sometimes completely. It is to the advantage of prosecutors to ignore context and simply cast a wide net as if everything was going according to “plan.” “For all acts performed by any person” is standard prosecutorial language. The chief prosecutor, Joseph Keenan, said: “All the accused together with other persons.” And who were these “other persons”? Keenan claimed they were “the large number of persons who might properly have been charged in this indictment.” Still, who were they? Where had this “might properly” idea come from? Why had this “large number of persons” not been indicted, too? Keenan was essentially telling the Japanese he would be indicting a lot of other people, whenever he felt like it, whomever he felt like going after. The effect, carefully calculated, was chilling. Every Japanese military commander, ever senior government official knew he could be next.

The twenty-eight defendants included fifteen senior army officers, three admirals, five diplomats, four senior government officials, and one civilian. There were so many defendants, many of them playing a small role, that the attorneys constantly had to look at the official seating diagram to identify the defendants in question. Every group trial needs “a big fish,” a man everyone loves to hate, like ancient Romans pointing their thumbs down at a fallen gladiator in the Coliseum. Nuremberg had Hermann Göring, Tokyo had Hideki Tojo. Tojo was charged with the Pearl Harbor attack and waging war in the absence of a declaration of war—a plain violation of the 1929 Hague Convention to which Japan had been a party. As the most visible leader of the war effort, Tojo had become the most hated man in the country, a convenient punching bag for Japanese to expiate their shame. Knowing what was coming, the day before he was due to enter prison and await trial, he swallowed a lethal dose of poison. Before it took full effect, American doctors got a hold of him and pumped out his stomach. Now under twenty-four-hour guard, he would be Joseph Keenan's prize prisoner. General Eichelberger was not so sure: better Tojo had succeeded, said Eichelberger, and saved the Americans a lot of trouble. Like the Supreme Commander, Eichelberger wanted the trial over with, the sooner the better.

It was not to be. The trial went on far beyond Nuremberg. Whereas the Nuremberg trial ended in ten months (December 1945–October 1946), this one lasted almost thirty-one months (April 1946–November 1948). State Department envoy William Sebald attended the opening day and had enough of it; he never returned.

Why did it take so long? Six months into the trial, MacArthur had a meeting with one of the most respected judges, Bernard V. A. Röling of the Netherlands. MacArthur expressed his impatience: “How long do you think the trial will last?” he asked.

“If the prosecution continues to proceed as it does now,” Röling told him, “the prosecution phase will last a year and a ‘fair trial' demands that the defense have about the same time at its disposal.”

Röling was right. When the defense got the opportunity to present its case in April 1947, a year had passed and the international political dynamic had changed dramatically. China was turning Communist. The defense lawyers stalled every way they could, filing numerous motions in the expectation that the Allies would fall out among themselves and China, the United States, and Japan would align themselves against the Soviet Union, thereby enhancing their clients' prospects for leniency. Playing along were the defendants and defense witnesses, delivering meandering testimony. Observed Judge Röling, fed up: They responded to cross-examination “with prolix equivocations and evasions.”

MacArthur was not happy, but there was little he could do. This was an international tribunal, consisting of a difficult judge from France and an even more difficult judge from British India who had serious issues about British colonialism and this new notion of crimes against peace. Chief Judge Sir William Webb called this “the trial of the century.” Later he decided a century wasn't long enough: There had been “no more important criminal trial in history,” he declared. For a trial so important, extra care had to be taken to ensure that all procedures were proper. MacArthur, after the flak he had gotten over the Yamashita trial, made sure everyone got the message: Leave me out of this. Frequently he was called on by the prosecutors to replace one of the judges or fire the head prosecutor (which he had the power to do). He refused every time. The trial would have to sink or swim on its own, he would do nothing to interfere or speed it along. In the meantime, as invariably happens when trials go on too long, fate intervened. Two of the defendants died and one was declared mentally unfit, reducing the number of defendants from twenty-eight to twenty-five.

The beauty of lengthy trials, however, is that one never knows what will turn up. Among the horrifying revelations to emerge in the testimony were orders to quickly execute all 30,000 American prisoners held in Japan should the Allies mount an invasion. That fact alone, thought many non-Japanese observers, was justification for using the atom bomb: a quick, massive strike.

Tokyo was not the most important trial in history—Nuremberg was—but it was certainly the biggest. The courtroom was huge: one hundred feet long by fifty feet wide, a third bigger than Nuremberg. There were eleven judges. Every day there were a thousand people in the courtroom. The lengthy indictment contained fifty-five counts against twenty-eight defendants, covering the seventeen-year period from 1928 to 1945. There were 419 witnesses and 4,336 documents. Keenan's prosecution team consisted of 340 lawyers, paralegals, and secretaries. For the defense there were 96 Japanese lawyers and 23 American lawyers. Whenever any important witness testified, nearly every defense lawyer, both American and Japanese, wanted to cross-examine him on behalf of his individual client. The days dragged on.

The trial, like all great trials, had its moments of high drama, which of course centered around the emperor. Hideki Tojo, the man with the Morse code teeth, was on the witness stand. He couldn't keep his mouth shut. In testimony under Keenan's withering cross-examination, he blew his cover and said there was no way the Japanese would have done anything against the emperor's wishes: “None of us would dare act against the Emperor's will.”

Keenan had to move fast. Privately that evening, his lawyers beat up on Tojo to alter his testimony. Next day, in a carefull scripted cross-examination, Tojo sang a different tune: the emperor had always been a man of peace. The emperor's “love and desire for peace,” he effused, “remained the same right up to the very moment when hostilities commenced, and even during the war his feelings remained the same.”

For the emperor, it was a close call. As the trial moved along and stumbled its way to the end, there was the burden of language translation. In Nuremberg, everything was done via simultaneous translation; in Tokyo, this was very difficult because Japanese as a language bears no relation to English or any other European language. “The process of translating is more like describing a picture in words—creating an equivalent, not a replica,” said one writer. “Not only is it difficult, it is also particularly time-consuming.” Time and time again the trial ground to a halt while lawyers argued over what was being said. Translating a single page sometimes took two days, and what emerged rarely satisfied everyone. “I shall return,” for example, came out as “I shall be back.”
Senso sekinin sha
(“war responsible persons”) does not mean “persons responsible for war” but rather “persons responsible in the course of war.” To settle these interpretation disputes, the tribunal had to set up a Language Arbitration Board, incurring more delays. The Japanese often had the advantage in communication. The lead lawyer for the defendants, Kenzo Takayanagi, spoke and wrote flawless English—to be expected of a graduate of Harvard Law School. This wasn't the only time SCAP's lawyers were surprised. Another graduate of that school was Yamashita's best friend and personal translator, Masakatsu Hamamoto.

Another problem for the prosecution was the absence of many official documents and records—attributed to deliberate destruction by the government and the military after the surrender. Bonfires glowed day and night burning incriminating documents. Among the documents destroyed were the transcripts of all imperial conferences, all the records of the Privy Council, all the records of the Supreme War Council, all deliberations of the cabinet, and all files relating to prisoners of war. Unlike the Germans, who obsessively saved every scrap of paper, the Japanese made sure there were no “smoking guns” lying around. From the moment the emperor announced the surrender, the Japanese had been busy destroying evidence. They may have laid down their guns, but they picked up a match.

 

IT IS NOT KNOWN
if Douglas MacArthur, while all the deliberations were going back and forth, ever encountered the seminal 1948 book on the Nuremberg Trial, F. J. P. Veale's
Advance to Barbarism: How the Reversion to Barbarism in Warfare and War-Trials Menaces Our Future
. If he had, he would have been amused to find the author saying: “It must be freely admitted that the stage management at Nuremberg was excellent. . . . In fact, it seems unanimously agreed that, if a stranger, say from Patagonia, who understood no language but his own, had visited the Court during the proceedings, he might have well imagined that normal judicial processes were in operation—provided, of course, he did not tarry too long.”