The International Military Tribunal for the Far East

182

Nippon Times (August 30, 1946)

War court hears further evidence on Nanking crimes

City is described as ‘hell on earth’ in affidavit of US missionary

“The whole Japanese army seems to be free to go and come anywhere it pleases and to do what it pleases,” J. H. McCallum, American missionary in Nanking, testified through affidavit at the International Military Tribunal yesterday as the prosecution offered affidavits of eye-witnesses of atrocities committed by Japanese troops after they entered Nanking in December 1937.

“It has been a hell on earth,” McCallum entered in his diary a week after the fall of the Chinese capital. “Never have I heard or read of such brutality. We estimate at least 1,000 rape cases a night,” he wrote.

An entry on December 29 read, “There is no discipline whatever and many of them are drunk.”

Describing how Japanese troops raped, looted and murdered without restraint, McCallum estimated 10,000 Chinese were butchered in cold blood.

Sutton presents documents

David N. Sutton, associate prosecutor, held the floor all morning introducing a series of affidavits and statements, describing the Nanking atrocities.

Defense counsel William Logan objected strenuously to the presentation of affidavits without calling their deponents as witnesses. The court ruled that the Charter allowed the acceptance of affidavits but added that the defense may question the deponents.

Prosecutor Sutton explained that George A. Fitch, American born in Soochow, had been in Tokyo over a month but had returned to China because of urgent duties as an official of the UNRRA in China.

In his affidavit he said he saw “many hundreds of innocent civilians” murdered, and on December 15 witnessed 1,300 men marched off and shot.

“The military have no control over the soldiers,” he wrote in his diary as secretary of the International Committee of the YMCA in China. Fitch declared callouses on hands or cropped heads was regarded as sufficient proof that the man was once a soldier and was a “sure death warrant.”

During the reading of the affidavit by McCallum, Captain Alfred Brooks pointed out to the Tribunal that Sutton had made an omission which described the Japanese soldiers as decent.

President Sir William Webb commented that it is taken for granted that wherever there are a number of Japanese there are sure to be some good ones. He pointed out that the prosecution were obliged to present evidence of war crimes and not the good conduct of the Japanese.

A familiar story of “rape, murder, looting, and shooting” repeated itself over and over again as Sutton read off the affidavits. Others submitted by the prosecution included the following:

Lewis S. C. Smythe, professor at the Nanking University since 1928, declared that while a member of the international committee for the Nanking Safety Zone “nearly two protests every day for the first six weeks of the Japanese occupation” were presented to the Japanese Embassy, but it was not until February 1938 that any effective action was taken by them.

Schoolgirls raped

Mrs. Shui Fang Tsen, director of dormitories of Ginling College, declared Japanese soldiers entered the school grounds looking for girls. One night, she said, 11 girls were carried off and nine of them were horribly raped.

Sun Yuen Cheng, Chinese rice merchant who was put to work in an army kitchen, said he saw an estimated 10,000 peoples moved down by machineguns and the bodies thrown in the river.

Woo King-zai and Hu Tu-sin both declared seeing Chinese killed for having callouses on their hands.

Mrs. Wong Chen-sze said her husband was kicked to death when he tried to protect his wife from being raped by four Japanese soldiers.

Wong Pan-sze declared witnessing soldiers coming into their house searching for women and raping them later. The Japanese stuck weeds into the vagina of a girl after being raped, the affidavit said.

At the outset of the morning session, prosecution witness Tung Shu-ming was dismissed after the defense waived cross-examination. The previous day he testified the Japanese had looted the Footung Electric Company in Shanghai of which he was director and manager.

Dr. Ichiro Kiyose yesterday formally introduced to the court George F. Blewett of Philadelphia, who will act as co-counsel for Hideki Tojo.

The prosecution introduced 15 affidavits in the morning and seven more until the afternoon recess. One of them, an investigation report by the Nanking Safety Zone committee, disclosed that 43,071 persons were buried between December 26, 1937 and August 30, 1938. It estimated that 260,000 were massacred by the Japanese.

183

A forensic miscellany:
Cross-examination

By Kanzo Takayanagi, member of the Imperial Academy

A few weeks ago an American news correspondent in Tokyo seems to have cabled home regarding the current trial at the International Military Tribunal that Japanese lawyers were now keenly enjoying the “new game” of cross-examination. The correspondent is perfectly right. Is not cross examination a “game” accompanied with dramatic flourishes which, of all lawyers’ technique, most completely captivates the public fancy? The “annihilation” by skilled counsel of a human being on the witness stand is certainly as thrilling a spectacle as a tenth-round knockout in the boxing ring. And this game is certainly new to Japanese lawyers.

It is one of the characteristics of Anglo-Saxon trials that the witness must give his testimony not spontaneously but responsively – not in a consecutive narrative, but by brief answers to brief successive questions. Another characteristic is that the questions are put by the counsel, not by the judge. In continental trials the witness often makes a speech without much interruptions and sometimes they are called on account of their eloquence! The questions, again, are put by the presiding judge, and though the counsel for the accused may conduct an examination and cross-examination, usually he can only do so with the leave of the court.

It may be added that by the Anglo-American mode of procedure valuable evidence is sometimes excluded, but the courts can elicit a most trustworthy evidence, in so far it is admissible by the rules. Under the continental system far more evidence can be admitted, but the evidence adduced is far less trustworthy, the delicate process of elucidation being left to the wisdom and experience of the judge, The method of cross-examination by counsel by getting the leave of the Court is not only rare and less prominent but even in the rare cases in which it is conducted, it tends actually to be far less effective than in Anglo-American trials.

The object of cross-examination is, of course, to reduce the effect of the evidence given in direct examination. This may be done by eliciting further facts which tend to harmonize with the case set up by the cross-examiner. The witness may have ignored or forgotten relevant facts, or the partisan examiner may have deliberately limited him by omitting certain topics. Or the cross-examiner may shake the evidence offered by getting the witness to admit that his opportunities of observing the facts narrated were inadequate or that his character or bias makes his testimony valueless or by involving him in inconsistencies as to make reliance on his statement impossible.

The general principles are not hard to grasp, but the art is by no means an easy one. Such works as “Hints on Advocacy” by Richard Harris or “Conduct of a Law Suit” by John C. Reed contain long chapters on that topic. And there are books specially devoted to this art, such as “Cross-examination of witnesses” by Asher Sgun Cornelius, or “Art of Cross-examination” by Francis Lewis Wellman. They are useful guides to cross-examiners. Like all art, however, its practitioners must learn it by practical experience in the courtroom.

Most lawyers agree that effective cross-examination is the result of long and arduous preparation in the case of each witness. It may take hours, even days to ask three questions. They are often buried in a mass of interrogations which seem important but are really fillers composed so as to distract the witness from the real purpose. It is notorious that many a novice wastes his time in badgering them by an examination utterly ineffective, though it might be highly entertaining to visitors. Moreover, he might, if careless in his composition of interrogations, elicit evidence favorable to the adversary. Indeed John C. Reed, a master-practitioner opines, “I note that the way veterans of the courts cross-examine less and less as they grow older in practice.” Sometimes, however, though the cases may be exceptional, cross-examination may work miracles.

Successful cross-examination presupposes a mastery of human character which is the first necessity but the last attainment of an advocate. There are all sorts and conditions of men appearing in the witness-box. According to Harris, there is first the “lying” witness. The witness comes with a well-concocted story, and tells it glibly enough. Second, there is the “flippant” witness. He comes into the box with a knowing look, and with a determined pose of the head, as if he would say, “Now then, Mr. Counsellor, I’m your man, tackle me.” Third, there is the “dogged’ witness, the exact opposite. He shakes his head rather than say “yes” or “no,” as if fearing lying and thinking that if he keeps to a nod or a shake of the head, he is safe. His motto is “A still tongue makes a wise head.” Fourth, there is the “hesitating” witness. He may be a meticulous individual or a very great liar. In most cases the hesitating man is wondering what effect his testimony will have upon the case, and not what the proper answer is. Fifth, there is the “nervous” witness. The answers do not come at all or tumble out two or three at a time and then with a “yes” and a “no” together, while “I don’t know” comes close behind. Sixth, there is the “humorous” witness. The witness is a public figure and he must not disappoint his patrons. He mounts the box and looks around the Court as much as to say, “The last witness was nothing, now comes the real performance.” Seventh, there is the “cunning” witness. He is not really a shrewd man, but only thinks he is, tries to be, wishes to be thought so. Eighth, there is the witness who is “partly true and partly false.” He is giving color to some facts, suppressing others, and adding little ones to make good measure for his party. Such a witness is the most difficult for counsel to deal with, for the greatest liar is not the man who invents but the one who adopts, who mixes the smallest portion of falsehood with his facts. Ninth, there is the “positive” witness. He stands up for his own side and would say All struck the first blow, if called on the side of Cain. His concept of an oath is not that it should be a restraint on mendacity but that it should give force to his assertion. He never unsays anything he says, however mistaken he may be. Tenth, there is the “stupid” witness, of which there are many kinds. One variety is that civil and agreeable being who agrees with everybody for fear of disagreement. His evidence you can mould to any shape you like. He can be made to currycomb a horse or wheel a borrow. Eleventh, there is the “awkward” witness. He contradicts everybody and everything. If you say “A fine morning Mr.–,” he will answer in a tone by no means conciliatory, “It will rain before long.” There are other types, and counsel is expected to make use of special technique for each class.

Various professions, moreover, offer certain standardized types of witness. The self-important “official” witness, like the superintendent of a division, the “medical” witness who may sometimes be a fake under a cloak of technicalities, the “police constable” hating a trained mind for the witness box and whose answers are generally stereotyped, the “private detective” with wondrous boldness and a faith in human credulity, the “surveyer” whose estimate of land may be fifteen hundred pounds or one hundred and fifty according to the party whom he represents, and the “expert in handwriting” who pretends to be able to read, if not sermons in stones, murder in love letters and divorce in everything.

Indeed, as diversities of climes and soils produce divergent plants, so diversities of ligation have given rise to diversities of witnesses.

There is again the “women” witness, with emotionalism and other feminine characteristics which can work havoc on cross-examiners. Last of all, there is the “alien” witness. It is notorious that the use of a foreign language, whether the witness is testifying by deposition or on the stand, affords ample opportunity for miscarriage of justice. Dean Wigmore says:

“The translation of a written document can rarely give the exact sense of the original; and in technical matters this may be seriously misleading; … The interpreter, as ordinarily found in courts, is unlikely to give dependable translations, and our justice must often be in such case a sad farce.”

And in his “The Prisoner at the Bar,” Arthur C. Train states:

“Where the witness speaks a foreign language, the task of discovering exactly what he knows, or even what he actually says is herculean. In the first place, interpreters, as a rule, give the substance – as they understand it – of the witness’ testimony rather than his exact words. It is also practically impossible to cross-examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply.

Here it seems, special technique remains to be developed. But this presupposes intimate knowledge of different cultures and racial psychology. If is only after prolonged experiences in dealing with international or colonial cases that a lawyer comes to plead his colossal ignorance. The ordinary lawyer is usually cocksure about the technique he has learned in his daily practice, and he is certainly right from his professional standpoint, for it does not pay to delve into such unexplored mysteries which are, after all, of rare occurrence in his practice. Only academic jurists with an inveterate taste for the rare rather than the ordinary can afford to be interested in such an esoteric problem. The records of the present bi-lingual or tri-lingual trial at the International Military Tribunal for the Far East may offer valuable materials to future research workers in this specialized field.

The Anglo-American legal tradition boasts a long history of brilliant cross-examination. Every lawyer and indeed many a layman is familiar with the successful cross-examination by Brougham in Queen Caroline’s trial, the favorite story of “Young Abraham Lincoln” saving his client Grayson charged with murder by cross-examining the lying Slovine who with a view to clearing himself swore away falsely the life of one who never did him any harm, and the cross-examination by Joseph H. Choate, one of the most brilliant American cross-examiners of the early 19th Century, leading a New York jury to give a verdict against a client and in favor of a Wall Street broker. Those and many other classical examples show the very high standard which cross-examiners should endeavor to emulate.

184

The Mainichi (August 30, 1946)

More affidavits and statements presented on Nanking atrocities

By Eimei Kato, staff writer

INTERNATIONAL MILITARY TRIBUNAL COURTROOM, Tokyo, Aug. 29 – Assistant Prosecutor David Sutton (U.S.) this morning presented further documentary evidence, mostly in the form of affidavits and statements, on Japanese atrocities against Chinese civilians and others in Nanking in the war crimes trials of the International Military Tribunal for the Far East.

With defendants Shumei Okawa, Iwane Matsui, and Baron Kiichiro Hiranuma still out due to illness, the Court opened at 9:30 a.m. with Prosecutor Chu of China requesting that the last witness Tung Shu-ming, director and manager of the Pootung Electric Co. of Shanghai, having completed his testimony, be permitted to return to China.

The request was granted by Sir William Webb, President of the Tribunal.

Co-counsel introduced

Dr. Ichiro Kiyose of the defense then introduced to the Court George Frank Bluet of Philadelphia who has been chosen as Kiyose’s co-counsel for the defense of Hideki Tojo.

Prosecutor David Sutton then began the reading of further documentary evidence in the Japanese atrocities against Chinese civilians and others. The documents were mainly affidavits of persons in Nanking and included the following.

  1. Affidavit (dated June 7, 1946) of Dr. Lewis F. C. Smith, professor of sociology at the University of Nanking, who testified that as secretary of the international committee of the Nanking safety zone in November 1937, he was responsible for drafting protests which were later presented to the Japanese following the Japanese occupation.

2 protests daily

Dr. Smith declared that an average of two protests daily were filed with the Japanese authorities during the first six weeks of the Japanese occupation of Nanking but it was not until February of 1938 that any offensive action was taken. (The affidavit was admitted over the objection of William Logan of the defense who pleaded that the trial did not become a battle of affidavits).

  1. Affidavit (dated June 18, 1946) of George A. Fitch, deputy regional director (Honan province) of UNRRA, who was born in Soochow, China, in 1883, and was secretary of the international committee of the Y.M.C.A., New York, as director of safety zone at the time of the Japanese occupation of Nanking.

Fitch testified that he saw hundreds of people shot and bayonetted on December 15. He saw 1,300 persons taken out of a safety zone camp to be shot. Several big fires broke out on December 19 and the American flag was torn down in several places. He also saw many Japanese trucks loaded with loot.

  1. The Statement of Mrs. Shui Fang-tsen, 71, director of the Ginling college dormitory, Nanking, who declared that Japanese soldiers often entered the college grounds, a safety zone, or pretext of looking for soldiers when actually seeking women to rape.

11 girls carried off

She declared that on December 17, Japanese soldiers carried off 11 girls, nine of whom returned horribly raped and abused while the other two were never heard from.

Protests to the Japanese consul did little good, she said. She stated that Japanese soldiers burned private homes for sport and warmth.

She added that the situation was worse in other safety zones where there were no foreign women like Miss Vautrin of Ginling college to restrain the Japanese.

185

Sakai sentenced to die

NANKING, Aug. 28 (UP) – Lt. Gen. Takashi Sakai, Japanese commander in South China at the outbreak of the Pacific War, was sentenced to death by a military tribunal of the National Defense Ministry, ending a war criminal trial which lasted four months.

Sakai’s request for postponement of the sentence pending further investigation was refused.

186

Pacific Stars and Stripes (August 30, 1946)

Affidavits of Jap atrocities read at trial

Rape of Nanking enters as big war crime trial with witnesses’ records
By Sgt. Roland Martone, staff writer

The Rape of Nanking entered into the major war crimes trial once more yesterday as Prosecution Attorney David Sutton read into the records affidavits submitted by eye-witnesses and victims of the atrocities allegedly perpetrated by the Japanese Army in that Chinese city. Massacre, looting, raping, and burning of private property were included among the outrages described in the affidavits.

A statement by Lewis S. C. Smythe, professor of sociology at the University of Nanking, was read by Sutton to set forth that regular, orderly protests of specific atrocities were made daily to Japanese officials. The complaints started in December 1937, Smythe declared, but no action was taken until February 1938.

During the reading of a diary kept by Mr. J. H. McCallum, Nanking resident, the defense objected on the grounds that Sutton was only reading passages that described unfavorable Japanese conduct, and was omitting favorable paragraphs. One sentence that was not included in the parts read was worded: “We have had some very pleasant Japanese who have treated us with courtesy and respect.”

Sir William Webb, chief tribunal, answered that “out of many Japanese, there must be some good ones.” The tribunal, however, is trying Japanese who allegedly committed crimes, and the good conduct of other Japanese, therefore, would not affect their cases, Webb said.

Later, Maj. George A. Furness, defense attorney, charged that Sutton was omitting paragraphs of the diary that were favorable to Japanese soldiers, whose conduct in Nanking was being described.

“Well, that (the diary) is in evidence,” Sir William remarked, “and you can use it when the time comes to present your evidence.”

The paragraphs that have been omitted can be read into the records, the tribunal president declared. The time for that would be during the presentation of the defense case, he said.

187

The Wilmington Morning Star (August 30, 1946)

Death toll may surpass 500,000

Trial witnesses disclose frightful scenes by Japs at Nanking

TOKYO, Aug. 29 (UP) – A full investigation of the infamous assault of Nanking may show that as many as 500,000 innocent victims were killed when the Japanese sacked the city in 1937, war crimes trial evidence disclosed Thursday.

The 11-man court trying 27 leading Japanese suspects heard a report which stated that more than 300,000 persons were known to have been killed. Investigations still under way may confirm that an additional 200,000 victims met death at the hands of blood-crazed Japanese soldiers.

The report on the fall of the city was drawn up by Chen Kwang-Yu, head procurator of the Nanking district court, and read into the evidence.

“Sad wailing was heard everywhere,” the report said. “The ground was strewn with corpses and blood ran knee deep.”

60,000 starve

In one instance, a group of 60,000 persons, including children and aged people, were starved for several days and finally machine-gunned and bayonetted, the report said.

The bodies were doused with kerosene and burned, and many were thrown into the Yangtze River. Japanese military police arrested civilians on grounds they were “soldiers” and killed them on the spot.

‘‘There were incidents in which water or kerosene was forced into the victims’ nose and mouth, frequently leaving him at the point of death,” the report said. “Military police forbade the victims to moan or cry out in pain. Any infraction led to mass beatings.”

The report said criminal assault victims ranged from young girls to women of 70. Refusals to submit were met with death.

The long document listed the names of many Japanese soldiers and army units which participated in the orgy.

Property pillaged

The prosecution introduced telegrams from the U.S. State Department telling how the Japanese pulled down American flags and tried to enter the U.S. embassy. American property was pillaged, the evidence showed.

Sir William Webb, court president, rejected evidence showing that the Japanese army used captured Nanking civilians for medical experiments.

Chen’s report said that the ‘Tama detachment carried off civilian captives to a medical laboratory where their reactions to poisonous serums were tested.”

The report went on to say that this detachment was “one of the most secret” and that the number of persons slaughtered could not be ascertained.

Webb sustained defense objections that this part of the report was unsupported.

188

The Evening Star (August 30, 1946)

Japs in Nanking used dogs to kill Chinese

TOKYO (AP) – Victory-crazed Japanese troops in North China threw helpless Chinese to starving police dogs, which tore the victims to shreds, the War Crimes Tribunal heard today.

“I saw them bitten to death,” said an affidavit taken from Cheng Ting-kiang, now a war crimes judge in China.

His testimony was introduced by the prosecution to show that the infamous “rape of Nanking” in 1937 was not the only Japanese victory orgy in China, that it extended into the remotest provinces.

Twenty thousand women and girls attacked, ‘‘thousands of innocent civilians” mowed down by mass machine gun fire and bodies left to rot in the streets for a month were some of the gruesome details of the Nanking episode described to the tribunal.

Ponds throughout Nanking’s international area were filled with bodies which the Japanese would not allow to be buried, a German Embassy clerk, W. Maier, said in a statement made one week after the city fell.

A report from U.S. Ambassador Nelson T. Johnson on May 1, 1938, to the State Department, which was presented to the court, said the Japanese systematically murdered anyone suspected of having served in the Chinese Army. He estimated that “well over 20,000 have been executed in this manner.”

189

The Pittsburgh Press (August 30, 1946)

Tortures by Japs with dogs told

TOKYO (UP) – Before a strained and hushed courtroom, the war crimes trial prosecution today introduced a score of affidavits depicting harrowing atrocities committed by the Japs against the victims of their aggression.

The list of cruelties included practically every torture that a frenzied brain could devise, the evidence showed.

A Chinese military judge, Col. Kiang Cheng-ying, gave several examples of the orgy of blood-letting that gripped the Japs during the war on China.

In one instance, he related, Jap army guards drove Chinese prisoners into enclosures where they were attacked and torn to pieces by savage dogs.

Other prisoners were shocked with electric currents and tortured with burning matches and red-hot iron clubs to wring “confessions” from them, Col. Kiang said.

An affidavit by another Chinese, Cheng Wei-hsia, said that the Japs captured 100 members of an anti-Jap group, mostly boys and girls in their early 20s. Some were held and tortured for as long as five years, he said.

190

Nippon Times (August 31, 1946)

More Nanking data submitted to court

Documents give vivid account of wanton atrocities by Nippon troops

Despite orders by the Japanese High Command to bring the soldiers under control, Japanese soldiers swarmed over Nanking in thousands and “committed untold depredations and atrocities,” an American report sent to the State Department in Washington in January 1938 revealed at the International Military Tribunal yesterday.

As soon as the Japanese armies entered Nanking a “reign of terror for the city really began,” the investigation report said.

Associate prosecutor David N. Sutton for the second consecutive day read into the record accounts of rape, looting and burning which were perpetrated by the Japanese soldiers after the fall of Nanking in December 1937.

Defense attorney William Logan objected strenuously that the prosecution deliberately omitted reading parts which revealed depredations by the Chinese themselves.

Referring to one excerpt which disclosed Chinese soldiers in their mad rush to discard their military uniforms and put on civilian clothes in a number of incidents killed civilians to obtain their clothing,” Logan urged that the prosecution read the entire report so the court could get a fair picture of the situation.

President Sir William Webb told the defense that they could have any portion read into the record when they presented their case but not during the prosecution case. He commented that the defense evidence will be the last to be heard and “will be freshest in our minds.”

The prosecution submitted another statement by a German eye-witness which stated that uncontrolled Japanese soldiers plundered Nanking for weeks after its capture, violated about 20,000 women and girls, and slayed thousands of innocent civilians.

Another German report said that on December 13 the Japanese “behaved very correctly, and even to a certain degree obligingly,” but the next day there was a complete change in attitude. They acted in a manner “indescribable,” looting everything worth taking, it said, adding that “there is still no respect for foreign flags.”

“This organized thieving and plundering lasted 14 days and even today one is still unsafe from some groups,” the report covering from December 8 to January 13 said.

The prosecution completed its phase on the atrocities committed in Nanking yesterday morning and submitted over a dozen affidavits regarding atrocities committed by the Japanese throughout the occupied provinces.

Ten of them, which were not read by the prosecution, were termed “trivial” by William Logan pointing out to the court that the incidents included such actions as robing of “one cow.”

President Webb described them as evidence to establish a “prima-facie case.”

A Chinese witness, brought in by the prosecution, testified through affidavit that the Japanese entered his village in Hopei Province in 1941 and forcing about 60 Chinese into a house, set it afire.

At another time, Ti Shu-tang said, Japanese soldiers forced 40 Chinese women to undress in full view of the villagers. The Japanese laughed and clapped their hands, the affidavit stated.

Under cross-examination, the 22-year-old youth who was brought to Japan as a prisoner in 1944 admitted he did not actually see the firing and shooting.

Another Chinese witness, Liu Yao-hwa, testified in his affidavit he saw a Japanese soldier rape a pregnant woman and eight others rape a 13-year-old girl who later died.

At the outset of the morning session, President Webb announced that the Tribunal will not sit on Monday, Labor Day.

191

Experts to compare Pu Yi’s handwriting with letter allegedly sent to Minami

The work of determining whether the letter of Henry Pu Yi, former emperor of Manchuria, to General Jiro Minami, one of the defendants in the war crimes trials was actually written by him was commenced Thursday after the former monarch, earlier in the day, had written Chinese characters on a piece of paper which were to be the standard by which to decide whether the letter in question was genuine or not, reports Kyodo.

The former emperor of Manchuria, who is leaving for the Soviet Union having taken the witness stand in the war crimes trials for eight days, the record length of time taken by a witness in the trials, wrote the characters in a Chinese poem at his quarters in the Soviet Embassy at 4 p.m., in the presence of a number of persons concerned.

Behind him as he wrote, stood Kofu Tokoroyama, Director of the Bureau of Criminal Identification of the Metropolitan Police Bureau, and Iwao Takamura, a handwriting expert in the service of the board, both designated to undertake the work of determining the genuineness of the Pu Yi letter to General Minami.

The former monarch, who had taken a seat near the window, took up a writing brush in the silence that fell, and holding it upright wrote a given Chinese poem on a piece of yellow ruled paper.

He was most careful. Each time he wrote one character he dipped his brush in Chinese ink.

It was said that the writing of the former monarch would be studied by Takamura, who with the aid of a microscope will scan every dot and curve in the writing and his stroke of the brush.

It was also said that it would be some time before Takamura can arrive at a definite conclusion.

192

A forensic miscellany

By Kenzo Takayanagi, member of the Imperial Academy

There are moral and legal rules governing cross-examination which cross-examiners are expected to follow. Every student of Dickens will remember the case of Bardell v. Bardell, in which Mr. Skimpkin’s browbeating cross-examination of Natheniel Winkle is described. For a young lawyer it is a reminder that the cross-examiner need not be “cross” or overbearing. With some witnesses, however, such a mode of examination seems to be the only way to make them abandon a false narration.

The Japanese legal tradition, and indeed the continental legal tradition in general, have not developed such an elaborate body of technique governing cross-examination. The Japanese lawyers enjoying the “new game” may well be pardoned, if they with the zeal of novites occasionally “rush in where angels fear to tread.” In the permanent interests of procedural reform in their country it is earnestly to be hoped that they will have amply opportunity or practical experience in this art, even if their exercises may not necessarily accrue to the benefit of their present clients.

Function of counsel

A few months back one of the vernacular city papers contained a report implying that the persons defending the accused in the International Military Tribunal for the Far East were, according to a certain law professor, themselves “imperialists and ultra-nationalists.”

The report must surely have been inaccurate, as newspaper reports in this country usually are. For to all contemporary lawyers the statement is so palpably absurd that such an allegation would rather case a discredit upon the noted scholar than on the defense counsel.

It must be admitted, however, that a similar misunderstanding about the function of an advocate persists in the popular mind. And such lay fallacy may well be excused, for did not Jeremy Bentham, an eminent authority on matters juridical, opine that Counsel was “an accessory after the fact?”

Again, a moral scruple sometimes lingers in the mind of a conscientious young lawyer in every country as to whether it is right and proper for him to defend an accused whom he knows to be guilty. Boswell’s classic query put to Dr. Johnson seems to be perennial. “What do you think, Sir, of supporting a case which you know to be bad?” And Dr. Johnson answered: “Sir, you don’t know whether it is good or bad till the Judge determines it. An argument which does not convince yourself may convince the Judge on whom you urge it and if it does not convince him, why, then, Sir, you are wrong and he is right. It is his business to judge, and you are not to be confident in your opinion that a case is bad, but to say all you can for your client and then hear the Judge’s opinion.” Dr. Johnson’s reply might be taken to represent the current view of the legal profession, although Dr. Johnson himself was not a lawyer by profession – just as he was not a doctor in the everyday sense.

It might also be remembered that even in England a prisoner was not allowed to have counsel to speak for him. In the old days a prisoner might employ counsel to speak for him in cases which were not treasons and felonies. In any case which was treason or felony, which latter comprised rather unimportant cases like stealing a sheep, the counsel was not allowed to appear, except to argue points of law, and Sir John Davys, in the Preface to his Reports, found in this practice the superiority of England over other nations. He says, “So as never any Professour of the law of England hath been known to defend (for the matter of fact) any Traitor, Murdered Ravisher, or Thief, being indicted or prosecuted at the suit of the King. “Turpe reos empta miseros defendere lingua” saith the Poet, and therefore it is an honor unto our law that it does not suffer the Professours thereof to dishonor themselves (as the Advocates and Orators in other countries do) by defending such offendours.”

With due respect to the eminent Reporter, does this not sound a bit ultra-nationalist?

So the “good old law” remained until the seventh year of William the Third when it was enacted that the Court assign counsel to the accused to defend him in all cases, except treason, counterfeiting the Great Seal or making false coin. And was it not a few months before Queen Victoria was on the throne, that defense by Counsel and Attorney was allowed in all cases.

If the common law lawyers were so slow in grasping the proper function of the advocate, how can we blame the lay mind for being unable to catch up with advanced thought?

The accused as witness

Some of the defense counsel in the International Military Tribunal are, it seems, bothering their heads about the advisability of putting their clients in the witness-box.

In the continental legal system, the accused is certainly the most important witness, even if he is not technically so styled and no oath is administered to them. But until the 1870s, strange as it may appear to the civilians, the evidence of the prisoner was inadmissible in England. This was, as is well known, a result of the general principle of the common law that every person who had an interest in the result of any legal proceeding, either civil or criminal, was disqualified to give evidence in it. The accused had, of course, the strongest interest in the outcome of a criminal action, and could not, therefore give evidence on oath. However, the prosecutor, unlike the plaintiff in a civil action, was not so disqualified, because he was technically no party, the dominus litis

This certainly introduced a novel principle diametrically opposed to that of the traditional common law. The innovation seems to have proved quite a success. Did not Lord Brampton find it “a danger to the guilty, but of the utmost importance to the innocent?”

It seems, however, that it has led to much perjury, three in every four prisoner witnesses, according to some, and nine in every ten, according to others. This, in a sense is quite natural, though moralists may deplore it. Such inevitable increase in perjury, however, may not have been too high a price to pay for the improved procedure.

From the standpoint of the accused, however, the new liberty to give evidence under oath was not, it seems, necessarily a boon. And as a matter of fact, not every accused avails himself of the privilege. Under the old procedure the accused could not say on oath what was his real answer to the charge, and the defense was largely hypothetical. Lord Darling, who was familiar with the old practice, tells us. “His counsel might not say, ‘He has a wife and ten children, some at the University, others lately born, some about to enter the Church,’ but he could say ‘Suppose this poor man had them’ and if he were gifted with sufficient imagination he did so, and then, naturally enough, the jury supposed that all that might be, was.”

If under the current English procedure the facts are detailed to the jury by a man who may have no imagination at all, who knows the facts and may desire to represent them as something totally different from what they are, there is very little chance of his making the jury suppose that all that might be, was. And again, if he gives evidence under oath, he has to submit to the bomb-fire of skilled cross-examination by counsel for the prosecution, and that is often fatal. So the philanthropic reformers did not, after all do the accused a good turn. The percentage of acquittal is not larger at present than in the old days when the counsel could freely ply their imagination to the facts.

So it is quite a problem for counsel for the defense whether they should advise their clients to enter the witness box or to remain in the dock as “silent prisoners.”

The position of defence counsel in the International Military Tribunal is, of course, peculiar. In the first place, as Sir William Webb several times reminded the defence counsel, the learned members of the august Tribunal are not a jury, representing “the ordinary man” or in the phraseology of Lord Justice Bowen “the man on the Clapham omnibus,” who may easily suppose that all that might be, was. Secondly, the accused are not surely ordinary felons who would expect their highly paid lawyers to employ fair means or foul in order to save their necks. They were eminent statesmen and warriors who under highly trying circumstances assumed responsibility for the destiny of a Great Power, even if through their mistaken policies their country is now reduced to perhaps a sixtieth-rate Power. Some of the prisoners, like true Orientals, may indeed prefer to maintain dignified silence. But others may desire to explain themselves before the whole world, even if such step might be sure to cost them their life. In the latter case, their counsel will have to comply with their wishes, whatever the outcome of the trial may be.

193

Pacific Stars and Stripes (August 31, 1946)

Tribunal told of atrocities in war trial

Defense claims Chinese responsible for many of Rape of Nanking horrors
By the Associated Press

Twenty thousand women and girls were raped by uncontrolled Japanese troops as they burned and plundered Nanking in 1937, a statement by a German Embassy’s clerk informed the International Military Tribunal today.

“Thousands of innocent civilians were murdered by mass machine-gun fire,” said W. Maier in a statement made one week after Nanking fell to the Japanese.

“Of 60 German houses, 40 were robbed and four burned down. One third of the city destroyed by fire by the Japanese. The shot and the murdered lie around the city and burial is not permitted.”

Maier described such horrors as the body of a Chinese soldier shackled to a bamboo bed laying within 50 feet from his house for one month. He said ponds throughout Nanking’s international area were filled with corpses, which the Japanese would not allow to be buried.

The defense objected strenuously that the prosecution, in reading long series of documents, eliminated all portions which showed that frantic Chinese soldiers murdered and robbed to obtain civilian clothing as the Japanese poured into Nanking.

“The Chinese cannot be executed for throwing their clothes away, but they can be shot after proper trial,” Tribunal President Sir William Webb reminded the attorneys.

Defense Attorney William Logan, contended much of the looting in Nanking is attributable to the Chinese and said this “court should be fully apprised of these facts now – and the Prosecution should not skip these paragraphs in reading these documents.”

Sir William told the defense it must be patient and bring in such material when presenting its case which will be the last heard and the freshest in our minds when we come to deliberate.

A report from United States Ambassador Nelson T. Johnson on January 5, 1938, informed the State Department that the Japanese were sympathetically

“It is estimated that well over 20,000 persons have been executed in this manner. Little effort appears to have been made to discriminate between ex-soldiers and those who never served in the Chinese Army. If there is the slightest suspicion that that person has been a soldier, such person is invariably taken away and shot. The Japanese determination to “wipe out” all remnants of Chinese government forces, is apparently inalterable.”

For the second successive day the prosecution attorney David Nelson Sutton, read into the record stories of rape, murder, burning and looting which occurred as the Japanese swept into Nanking.

He said the International Committee was unavailing in the efforts to prevent berserk Japanese troops from carrying off the raping and murdering of hundreds of Chinese girls.

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Proceedings in Chambers on an application in connection with the production of a witness whose name is Takashi Sakai for the defense of the accused Yoshijiro Umezu, September 3, 1946

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196

The Evening Star (September 4, 1946)

Tip on defense plans to Tokyo prosecution arouses Japs’ counsel

TOKYO (AP) – A message from a lieutenant colonel in the War Department tipping off the defense’s plans caused resentment today among attorneys defending former Premier Hideki Tojo and 26 other Japanese against war crimes charges.

Defense counsel learned of the communication when Army messengers mistakenly distributed copies to them instead of to the prosecution.

The radiogram recited the conversations of Defense Attorney Owen Cunningham of Des Moines, who conferred with War Department officials in Washington en route to Nuernberg to obtain details of the tri-partite pact.

It said Mr. Cunningham told Lt. Col. William Hornaday the defense expects “to establish the defense that Japan was forced into the attack on Pearl Harbor by America’s diplomatic moves and economic sanctions.

“This is the same type of political defense the Germans tried at Nuernberg and that the tribunal consistently refused to admit on objection of the prosecution. Thought you might like to be forewarned if you have not previously learned the defense intentions.”

Several defense attorneys said they felt a protest should be made to the court but would await a discussion by the entire defense staff.

“The defense is employed by the War Department, but if you can’t talk privately to the people who hire you without having them tell the prosecution what you say, how can you expect to keep the confidence of the Japanese you are defending or the Japanese attorneys with whom you are working?” asked Attorney William J. McCormack of Chicago.

Chief Prosecutor Joseph B. Keenan said Mr. Hornaday formerly was with the international prosecution section here and now is in the Civil Affairs Division of the War Crimes Section of the War Department in Washington.

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198

Nippon Times (September 5, 1946)

Tojo spurred war with US, Britain, testimony shows

Was sole advocator as others urged fight with China, trial evidence bares

For the first time since the opening of the military tribunal in Tokyo, Hideki Tojo was directly charged of having spurred Japan to war with the United States and Great Britain in a testimony submitted in affidavit form at Wednesday morning’s session.

The damaging evidence, presented to the court by assistant prosecutor Arthur A. Sandusky, and signed by a Japanese witness, Susumu Morioka, who was dispatched to China to expedite the narcotics traffic, clearly stated that ever since the start of the Sino-Japanese hostilities in 1937, all Japanese army leaders, including Generals Hisaichi Terauchi, Hajime Sugiyama, Reikichi Tada and Yasuji Okamura, urged prosecution of the war in China, but that Tojo was the sole advocate of war with the US and Britain. When the testimony was read, Tojo maintained a calm demeanor and continued to scribble notes.

Defense counsel Capt. George A. Furness interrupted by asking the whereabouts of the witness Morioka, demanding the opportunity of cross-examination, to which President Sir William Webb ruled that general permission is granted hereafter for procurement of such information without any special request. It was disclosed Morioka is now in China.

Further data produced

Switching from the narcotics phase in Manchuria to that in North China, the prosecution continued to pile up further evidence in the form of photostatic copies of confidential reports from American government representatives in China to prove that the Japanese government had strongly encouraged the production of opium, heroin and other narcotics for the dual purpose of weaking and undermining the strength of the Chinese people and simultaneously reap a large revenue.

One statement by Dr. Leo Kandel, an Austrian resident of Peking, disclosed that although the Japanese army encouraged Chinese to use narcotics, the Japanese themselves were strongly restricted from the drugs. One passage in the affidavit even went to disclose that “the hospitals gave morphine very freely to the Chinese patients – a practice not applied to other patients.”

Preceding this document, piles of reports in facsimile form from United States Treasury officials in Shanghai to the Treasury Department in Washington between the years 1934 to 1940 disclosed that the Japanese authorities vigorously backed a campaign among the farmers in the six Hsien districts in North Chahar in the name of the Hsien magistrates to grow poppy on a wide scale. For the successful operation of the program, the report disclosed, varied types of compensations were offered to the cultivators of the poisonous plant, such as exemption from land tax and compulsory military service, as well as the conferring of “certificates of honor and the privilege of being listed as candidates for public service.”

Opium rings operated

Following the first recess, assistant prosecutor Major John F. Hummel took the floor and continued to unfold new chapters in the narcotics conspiracy by unfolding the story of gigantic opium rings operating in Formosa and Amoy, marketing opium brought in from Persia in close teamwork with Japanese army circles.

Another document laid bare the phase in which Paul Yip, a notorious opium trafficker and racketeer, heading the opium combine in Amoy, opened up large negotiations with the Japanese Formosan government for the purchase of a large shipment of Persian opium for distribution in South China and also for conversion into narcotics drugs. In this connection, the testimony further revealed that the Japanese army in Formosa was fully bent on the ultimate annexation of Fukien Province, and in order to finance the coup, was intent on selling Persian opium, hence the undercover dealings with Yip.

In another documentary exhibit giving sidelights of Japanese drug trade in Fukien, it was brought out that in one specific port, Nantai, many Japanese and Formosan drug dens were centered in narrow lanes off the wide streets of the port. Under the protection afforded by a sign reading “So and so shop under Japanese management,” advertising bills such as “The opium den upstairs is now open to business. Our opium tastes good and sells cheap. Please have a try,” or “Superior Persian opium prepared by high-class expert. Beautiful girls serving as waitresses,” were openly displayed.

Cut rate prices offered

Another factor in increasing dope addicts, further evidence disclosed, was that prices of narcotics were cut to rock bottom in the Japanese narcotization policy put into effect simultaneously with the military campaign.

In a report sent to the Treasury Department in Washington by M. R. Nicholson, Treasury attache in Shanghai, dated February 2, 1938, price comparisons showed that while in Taishan Chinese government monopoly opium was quoted at $7 to $8 per tael, the Japanese charge was only $2.50 for the same amount, while only 50 cents were charged for 100 red pills.

In submitting the voluminous data on narcotics from which only key excerpts were read, prosecuting attorneys Sandusky and Major Hummel were relieved from time to time by associate prosecutor David N. Sutton. The Defense section failed to raise any major issues in the session.

Meanwhile, distinguished visitors in the courtroom for the morning session included Howard C. Petersen, assistant secretary of war; Thomas B. McCabe, foreign liquidation commissioner; Brig. Gen. L. J. Whitlock, General MacArthur’s deputy chief of staff; Col. Edward Stan Jr., foreign liquidation commission representative, and Capt. Hugh F. Boyd Jr., Headquarters Army Air Forces, Washington, D.C.

Morioka in Tokyo

In the afternoon session, Dr. Ichiro Kiyose of the Japanese defense section stated that although the prosecution had affirmed Suzumu Morioka, whose affidavit charged Tojo of advocating war with the United States and Britain, was in China, information had been received that Morioka was at present residing in Tokyo. Prosecutor Sutton negated Kiyose’s charge by explaining that the prosecution had merely stated Morioka’s testimony was written up in China, and not that he was still there.

Chief Justice Webb then advised that Morioka be brought in as a witness at an early date.

The Prosecution then made it next move by introducing a new witness, Hajime Satomi, currently held in Sugamo Prison for having cooperated with the Japanese military in the narcotics traffic in China. His testimony disclosed that he was connected with the Special Service Organization of the China Expeditionary Forces from 1937 until 1945 and that during this period, he had personal knowledge of the sale of 4,000 boxes of Persian opium and ¥10,000,000 worth of Mongolian opium.

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200

Coolidge Examiner (September 6, 1946)

Former war prisoner from Casa Grande asked for more data

Among 23 Arizona former prisoners of war who are being asked by the Army to supply additional testimony concerning war crimes and atrocities for use in the Tokyo trials, is a Pinal County resident, George Mansell Jr. of Casa Grande.

The former war prisoners have been asked to visit either the Veterans Administration or the district attorney’s office, to give any additional information which may lead to conviction of war criminals. This information is needed, also, to complete historical files.

201

The Evening Star (September 6, 1946)

Japs ordered to produce all Pearl Harbor plans

TOKYO (AP) – The Japanese government was directed today to deliver to Allied headquarters’ international prosecution section all plans and orders for the Pearl Harbor attack.

The directive also called for all messages concerning location and movement of American fleet units in Hawaiian waters that passed from the Japanese Navy or Foreign Office here to the Japanese consul general at Honolulu in the 90 days preceding the attack.

If such plans cannot be produced by September 9, the Japanese must explain why. If documents were burned, the Japanese must furnish the name of the official who ordered the burning and the date on which it was done.

The documents requested included Japanese combined fleet top secret operation orders dated as far back as November 5, 1941, the striking force operation order, the Japanese Army-Navy central headquarters agreement, and Japanese Navy staff section orders of November 5, 1941, to the late Adm. Isoroku Yamamoto, then commander in chief of the Japanese combined fleet.