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Foreword by Mei Xiaokan and Mei Xiao’ao
THE TOKYO
TRIAL AND
WAR CRIMES
IN ASIA
MEI JU-AO
The Tokyo Trial and War Crimes in Asia
Mei Ju-ao
The print edition is not for sale in China Mainland. Customers from China Mainland please
order the print book from: Shanghai Jiao Tong University Press.
ISBN of the China Mainland edition: 978-731-3150-80-6
This Palgrave Macmillan imprint is published by the registered company Springer Nature
Singapore Pte Ltd.
The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore
189721, Singapore
An Old Preface to International Military
Tribunal for the Far East (I)
Dr. Mei Ju-ao passed away for years. My memory of him awoke when Mei
Xiao’ao, his son, came to me with his book, The International Military
Tribunal for the Far East (unfinished), and asked me to write a prologue
for it. I am pleased to do so both for the reading public and out of my own
interest. Although this book remains unfinished, it is still of great signifi-
cance because it introduces the establishment and development of the
principles concerning crimes of war after World War II. Implementation of
these principles throughout the Tokyo Trial further clarified the condem-
nation and punishment of aggressive wars. Like the Nuremberg Trial, the
Tokyo Trial not only prosecuted conventional war crimes that went against
the laws and customs of war as provided for in traditional international
law, but also defined crimes against peace and crimes against humanity,
and went further to elaborate in great detail the concept of “conspiracy”
in aggression. While the four chapters completed by Dr. Mei put more
emphasis on the facts and procedures of the Tokyo Trial, this book does
contain a general explanation in its Chap. 1 as of the legal basis for punish-
ing the Japanese Class-A war criminals. Of course, a general explanation
may not replace a penetrating legal analysis, but it can help the readers
perceive the starting point and the direction of the Tokyo Trial, especially
as one can take a reference to the text of the Tribunal’s final judgment.
This is why I say that it is still of great significance although unfinished.
Another aspect for which importance should be attached to Dr. Mei’s
book is that it reveals a large amount of information on the Tokyo Trial that
outsiders do not have access to, which includes the process of organizing the
v
vi AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR…
Tribunal and the coordinative relations among its various departments, the
details about the determination of the list of Class-A war criminals and their
arrest and interrogation, the seat arrangement of the bench and its internal
working system, the organization, duties and working procedures of the
prosecution and the defense, the participation of American defence counsels
and the significance thereof, and so forth. It is a big pity, however, that the
final stage of the Trial, that is, the process of convicting and sentencing the
defendants, especially the war criminals responsible for the invasion of
China, is not reflected in these four chapters. Dr. Mei may have planned to
cover this part in his subsequent chapters, which would no doubt be a fasci-
nating story. At the time of the Trial, the KMT government lacked correct
comprehension and estimation. They thought since the fact of Japan’s inva-
sion of China was undisputable, the Trial must be no more than a formality,
with the war criminals punished accordingly, without the victim countries
having to provide much evidence. This being a misunderstanding already, to
their greater surprise, the United States sent a troop of lawyers to defend the
accused, in addition to the fact that seven of the eleven judges came from
common law countries, which caused imbalance between the prosecution
and the defence in favour of the accused. Although the Tokyo Charter stip-
ulated that “The Tribunal shall not be bound by technical rules of evi-
dence”, the Tribunal basically adopted the common law procedural rules.
Pressured by this situation, China had to on one hand object to the mechan-
ical application of highly technical rules of evidence, and on the other hand
to race against time, searching for evidence in the greatest possibility, includ-
ing relevant telegrams archived in Japan’s Ministry of War. These evidences
were presented at the final stage of counter-examination of the defendants
and their witnesses, so as to further substantiate the proof of their crimes in
China. It paid off finally. All the major war criminals responsible for the war
of aggression against China, such as Kenji Doihara, Seishiro Itagaki, Iwane
Matsui, Akira Muto and Koki Hirota, were all duly convicted and sentenced
to death, with their crimes made well known to the world.
As to its practical meaning, China has adopted an opening-up policy
since the third plenary session of the Eleventh Central Committee of the
Communist Party of China, and the number of foreign-related legal cases
have increased dramatically, most of which are taking place abroad. “To
know both yourself and your enemy”, we need to learn more about litiga-
tion procedures of other countries, especially those of common law coun-
tries, for which we are short of materials at present. In Chap. 4 of this
book, Dr. Mei elaborated on the trial procedures under the common law
AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR… vii
Dr. Mei Ju-ao, my dear friend, has passed away for more than ten years.
Now, his posthumous work International Military Tribunal for the Far
East is published and made known to all, which is a blessing for the legal
circle in China.
Dr. Mei dedicated his whole life to the law. He studied law in early years
and, at the age of twenty-four, earned his J.D. from the University of
Chicago. After returning to China, he engaged in legal education and
took part in legislative work. In 1946, as the Chinese judge, he partici-
pated in the trial of major Japanese war criminals in the International
Military Tribunal for the Far East in Tokyo, which lasted for three years.
On the eve of the founding of new China, the KMT government appointed
him as Minister of Justice, but he resolutely refused to assume office, and
took a personal risk to return to Beijing from Hong Kong. After that, he
served as a legal adviser to the Ministry of Foreign Affairs until his death.
During this period, he attended many international conferences as an
expert in law and diplomacy. Dr. Mei made a great deal of contributions
to law in his life, while his work in the International Military Tribunal for
the Far East constituted one of the most important ones.
The trial of war criminals, as pointed out by Dr. Mei, “is an important
event in international life after the Second World War and a pioneering
undertaking in human history.” Learning a lesson from the failed attempt
after World War I and in order to succeed this time, the major allies during
World War II repeatedly affirmed the principle of punishing war criminals
in several agreements. Thus, two international military tribunals were set
up after the war, in Nuremberg, Europe and Tokyo, the Far East, for the
ix
x AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR…
trial of war criminals. The two tribunals successfully completed their tasks
in about one year and over two years respectively, which was a great
victory.
From the perspective of international law, war crimes and war criminals
are new concepts established through the Nuremberg and Tokyo trials.
Their establishment demonstrates a new development of international law,
especially the law of war. For a long time, there has been a distinction
between just wars and unjust wars in international law, while in modern
times this distinction is expressed as the difference between wars of aggres-
sion and wars against aggression. Although, in the strict sense, rules of
international law concerning such distinction have not yet been well
formed, condemning wars of aggression has long become part of the legal
consciousness of mankind and part of the new content of international
law. The punishment of war crimes and war criminals is derived from the
principle of differentiating wars of aggression and wars against aggression
and the principle of condemning wars of aggression, which, in turn, pro-
motes the development of such principles so that their status in interna-
tional law has been confirmed. As such, the two trials of war criminals
following World War II, i.e., the trials in Nuremberg and Tokyo, marks
indelible achievements in the history of development of international law.
It is very meaningful for Dr. Mei to write down his personal experience
of participation in the trial of war criminals in the International Military
Tribunal for the Far East. He started to write this book in 1962.
Unfortunately, once the “Cultural Revolution” broke out, his writing plan
was brutally interrupted. Before his death in 1973, he no longer had the
chance to continue writing. Therefore, this book represents an unfinished
draft with only four chapters. However, despite being unfinished, the four
chapters have discussed many important issues such as the establishment
of the Tribunal and its jurisdiction, the Charter and organization of the
Tribunal, the arrest and prosecution of major Japanese war criminals, the
trial procedures of the Tribunal, and so forth. This book is rich in materials
and deep in analysis. It is a valuable book and can serve as an important
reference book for the study of international law and international politics.
Books about the International Military Tribunal for the Far East and the
trials of war criminals which bear as great significance as this one are rare
even in the world.
As a jurist, it was a glorious and arduous task for Dr. Mei to participate
in the trial of international war criminals. With great efforts and after over-
coming tremendous difficulties—lack of attention and support from the
AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR... xi
Thanks to the efforts the Tokyo Trial Research Center and Shanghai Jiao
Tong University Press, My Personal Experience at the Tokyo Trial is to be
published, which is of great significance not only to our family but also to
the country. It will undoubtedly promote an in-depth study of the Tokyo
Trial, while expressing our lasting memory of our beloved father Mr. Mei
Ju-ao.
I
Our late father Mei Ju-ao, Ya Xuan (courtesy name), was born on
November 7, 1904 in Zhuguqiao Mei Village in Nanchang, Jiangxi
Province. Compared with provinces like Hunan, Guangzhou, Jiangsu and
Zhejiang, Jiang accepted new things slowly. However, our grandfather, a
clear-minded, knowledgeable and enlightened gentry, decided to send his
eldest son, our father, to the Exemplary Primary School of Jiangxi
Province, a school of the modern type which was rarely seen and not
highly praised then and there. Under firm support of our grandfather, our
father, who was only 12 years old, was admitted to Tsinghua School in
Beijing in 1916. With no connections, being far away from home and even
unable to speak the official language (Mandarin) well, the difficulties he
encountered in studying at Tsinghua were really not small. Students had
to strictly follow a semi military timetable and to take an active part in
western style physical exercises. No subject could be treated carelessly.
Otherwise, one would fail to go up to the next grade or run the risk of
being expelled from school. Many foreign teachers taught in English and
xiii
xiv IN MEMORY OF OUR FATHER (FOREWORD)
most of the students had a good command of English. But our father
knew little of the language, which made it almost impossible for him to
understand the lectures. What should he do? He was determined to learn
from scratch and catch up with others.
Then, every day at the break of dawn, there would be two young stu-
dents by the lotus pond on Tsinghua campus. Sometimes they mumbled;
sometimes they asked and answered questions to each other; sometimes
they recited texts individually. Gradually, they became more fluent, and
their exercises became more sophisticated. That was our father and our
granduncle, Mei Yangchun, studying English together. Mei Yangchun was
only four years older than our father and was admitted to Tsinghua School
from Jiangxi Province in the same year. Working day and night, their
English improved rapidly, which helped them to make progress in other
subjects. During the eight years, their teachers and schoolmates looked at
them with completely new eyes because of their excellent academic
records. Later on, Mei Yangchun became a famous engineer, presiding
over the design and construction of important bridges such as Nanjing
Yangtze River Bridge.
Our father’s vision was increasingly open and he developed wider inter-
ests in his advanced years at Tsinghua School. He served as chief editor of
the Tsinghua School Magazine, and organized a progressive group named
“Chao Tao” together with some other students including Shi Huang, Ji
Chaoding, Xu Yongying, who were early members of the Communist
Party of China. Shi Huang died young as a martyr. Ji Chaoding and Xu
Yongying engaged in revolutionary work ever since and served as impor-
tant leaders in the 1950s and 1960s.
In 1924, our father went to study in the United States. He studied at
Stanford University and University of Chicago Law School, where he
received his J.D. degree at the end of 1928. Living abroad, he had always
been concerned about the destiny of his country. In response to the call
for the Northern Expedition to “overthrow the governance of the
Northern warlords” by the National Revolutionary Army, he joined Shi
Huang, Ji Chaoding, Xu Yongying and some other Chinese students in
the United States in initiating the Research Institute of Dr. Sun Yat-sen’s
Thoughts, to actively promote revolutionary ideas among Chinese stu-
dents studying there and beyond.
In 1929, after visiting European cities including Paris, Berlin, London
and Moscow, he returned to China, following an absence of nearly 5 years.
IN MEMORY OF OUR FATHER (FOREWORD) xv
II
In the 16 years from his graduation to assuming the position of judge in
the international court, he taught courses in civil law, criminal law, com-
mon law, international law and politics at Shanxi University, Nankai
University and Wuhan University successively. He also served as a part-
time professor at Fudan University, Central School of Politics, and Judge
Training Institute of the Ministry of Justice. From 1934 onwards, he
became a member of the Legislative Council of the KMT government,
participated in its legislative work and served as acting chairman of its for-
eign affairs committee. At the same time, he worked as deputy director of
Sun Yat-sen Institute for the Advancement of Culture and Education and
chief editor of Collection of Current Affairs (a semimonthly journal), writ-
ing, translating and editing a significant volume of articles on law, foreign
affairs and international politics.
His writings in this period involved common law, civil law, Chinese and
western legal thoughts, and China’s constitution and criminal law, for
example, A Research on the Anglo-Saxon System of Law, The Napoleonic
Code and Its Influence, The History and Organization of Soviet
Revolutionary Courts, The History, Schools and Trends of Modern Law, The
Rule of Law in China’s Old Legal System, Criticism of the Constitutional
Guarantee Section of the Draft Constitution, and Comments on the
Amendment to the Criminal Code. A wide horizon, great variety of topics,
emphasis on both theory and practice, and rich research findings, these
could characterize his academic career at that time. His long-standing lec-
turing, investigation, reading and writing laid a solid foundation for his
legal theory and practice, which prepared him for his position as an inter-
national court judge in Tokyo.
Based on his perspective as a scholar of law, he had pointed out that
under a political system of KMT’s “one-party dictatorship”, “the party is
above all else. Each government act is based on the party’s principles and
assumes responsibility solely for the party. It does not make a contract with
its people and has no obligations to the people. In other words, the party
only has rights over the people, not obligations.” (Political Tutelage and
Provisional Constitution) As to the fact that the law was used as a tool for
the powerful and the rule of law could not be implemented, he prompted
a sharp question, “What had destroyed people’s liberty and trampled on
people’s rights? The law or the extralegal forces of government, the
xvi IN MEMORY OF OUR FATHER (FOREWORD)
III
Together with the peace-loving people all over the world, the Chinese
people have finally triumphed in the anti-fascist war through extremely
severe struggles and at very high cost. After the war, the international
community set up military tribunals in Nuremberg, Germany and Tokyo,
Japan, where those major responsible persons of Germany and Japan were
tried respectively. In February 1946, the GHQ appointed nine judges
(later revised to eleven) of the International Military Tribunal for the Far
East (the “Tokyo Trial”) on the nomination of the Allied Powers. As
IN MEMORY OF OUR FATHER (FOREWORD) xvii
mission and his vision of the overall situation stood vividly revealed on the
paper. Therefore, it is obvious to see that our father contributed heavily to
the more or less satisfactory results achieved in the Tokyo Trial.
IV
At the time when the work of the Tokyo Trial came to an end, the regime
of China was in the process of being changed. Our father refused to
assume the position of “State Councilor and Minister of Justice”, and
refused to go to Taiwan for a living. Passing through Hong Kong, he
arrived in Beijing to serve as an adviser to the Ministry of Foreign Affairs
of the People’s Republic of China, with a commission document signed by
Zhou Enlai, premier and then foreign minister of PRC.
At the beginning of returning to the mainland, our father lived in peace
with liberal wages and benefits, and was highly esteemed in professional
work. On the one hand, he was very joyful, humming Beijing opera in the
spacious courtyard and sketching cartoons on the frosting windows. He
taught his daughter singing nursery rhymes in his hometown dialect, and
bought toy swords for his son. On the other hand, he could not help but
be nervous, as it was unavoidable to face political campaigns one after
another as well as to report one’s ideology, transform the world view and
learn Russian. Luckily though, the Ministry of Foreign Affairs was a bit
different from other government organs or institutions after all. The “local
climate” there was still somewhat pleasant as it was directly led by Zhou
Enlai, Chen Yi and other senior leaders, with most colleagues having
higher moral qualities. Even against the backdrop of the faculty adjust-
ment with sociology and political science being abolished and the “overall
Soviet-Unionization” of law, the senior experts of the Ministry of Foreign
Affairs were still able to carry out researches on certain issues in interna-
tional law and international politics, and could give consideration to aca-
demic theories while serving the immediate need of reality. By the time
when the “Cultural Revolution” approached, Zhou Gengsheng, Liu
Zerong and other seniors had published academic treaties, with our father’s
International Military Tribunal For The Far East completed in half, and
New Concept of War Crimes, On Tani Hisao, Matsui Iwane and the
Nanking Massacre and some other papers issued. Despite the unfair treat-
ment in the anti-rightist movement from 1957 to 1958, our father stayed
patriotic as always, making serious and conscientious self-examination, and
in the meantime having research works coming out constantly.
xx IN MEMORY OF OUR FATHER (FOREWORD)
Mei
September 2013 Xiaokan
Mei Xiao’ao
Editor’s Note
xxiii
Contents
xxv
xxvi Contents
Mei Ju-ao Mr. Mei Ju-ao was born in Jiangxi, Nanchang in 1904. He
graduated from Tsinghua School (predecessor of Tsinghua University) in
1924 and then travelled to the United States to study at Stanford
University and University of Chicago Law School, where he received his
J.D. degree. After returning to China in 1929, Mei Ju-ao became a pro-
fessor at Shanxi University, Nankai University, Wuhan University, Fudan
University, the Central Political School, teaching courses including polit-
ical science, civil law, criminal law, introduction to the common law and
international law. From 1934 onwards, he served as a member of the
Legislative Council of the KMT Government and had acted as acting
chairman of its Foreign Affairs Committee. After the victory of the War
of Resistance against Japan, he was assigned by the government, in 1946,
to be the judge of the International Military Tribunal for the Far East
representing China. During his nearly three years of trial work, he made
great efforts to safeguard the national dignity and international justice,
and contributed to the achievement of a just and fair trial. At the end of
1948, the KMT Government appointed him as Councilor of the Executive
Council and Minister of Justice, but he refused to assume office and fled
to Hong Kong. He arrived in Beijing under the arrangement of the CPC
representatives in early December 1949. From 1950 onwards, he served
as adviser to the Ministry of Foreign Affairs, representative to the National
People’s Congress and member of its Bills Committee, member of the
Chinese People’s Political Consultative Conference, member of the
World Peace Council, Executive Director of the Chinese People’s
xxvii
xxviii ABOUT THE AUTHOR
xxix
CHAPTER 1
1
Article 1 of the Charter of Nuremberg International Military Court: “In pursuance of…,
there shall be established an International Military Tribunal for the just and prompt trial and
punishment of the major war criminals of the European Axis.” Article 1 of the Charter of
International Military Tribunal for the Far East: “The International Military Tribunal for
the Far East is hereby established for the just and prompt trial and punishment of the major
war criminals in the Far East.”
At the end of World War I, the Central powers had intended to deliver the
German heads and senior officials of state to international trials. However,
that intention was a wishful thinking, finally becoming a joke in history.
When World War I was at an end, “to hang the Kaiser” was prevalent
among the Central and the Allied Powers. Since the War was unprece-
dented in its magnitude and the pain and loss that it caused to people, the
people of those countries were filled with a deep hatred for Kaiser Wilhelm
II and the leaders of the German regime who began the War, desiring
severe and swift punishment for them.
During the Paris Conference held in 1919, a serious discussion occurred
about punishing the Kaiser and the major war criminals according to law,
as indicated in four articles of Chap. 7 (Articles 227–230) of the Treaty of
Versailles.
Article 227 clearly recommended that “a special tribunal will be consti-
tuted to try the accused … with a view to vindicating the solemn
obligations of international undertakings and the validity of international
THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 3
morality”. And Article 228 stipulated that “the German Government rec-
ognizes the right of the Allied and Associated Powers to bring before mili-
tary tribunals persons” under the Kaiser.
According to the provisions of the Treaty of Versailles, the Conference
appointed an international commission of inquiry to “be engaged in
researching the individual’s responsibilities who started the War, listing
their names and draft the charter for organizing the court”. The commis-
sion did as it was instructed.
The Central and the Allied Powers would have made progress on the
trial of German major war criminals, but the effort eventually turned in
vain and ended up in bankruptcy, the reasons of which can be attributed
to the following:
As a result, the provisions on punishing the Kaiser and other major war
criminals in the Treaty of Versailles existed without any actual implementa-
tion. The organizing of an international court stipulated in the Treaty
failed, and the Allied Powers, reluctant to proceed and for their own con-
venience, entrusted the trial to the German government.
The German government did not begin the trial in Leipzig until May
of 1921, two and a half years after the War ended, presided by its Supreme
Court which had no respect for the trial. The insincerity and absurdity of
that trial was without parallel in history.
4 M. JU-AO
2
For details about the Leipzig Trials, see Mullins, Leipzig Trials (1921).
THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 5
3
For the statements, diplomatic correspondence and declarations, see S. Glueck, War
Criminals: Their Prosecution and Punishment, Appendix B, pp. 109–113.
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EL TERROR DE 1824
Es propiedad. Queda hecho el depósito
que marca la ley. Serán furtivos los
ejemplares que no lleven el sello del autor
B. PÉREZ GALDÓS
EPISODIOS NACIONALES
SEGUNDA SERIE
EL TERROR DE 1824
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132, Hortaleza
1904
EST. TIP. DE LA VIUDA E HIJOS DE TELLO
IMPRESOR DE CÁMARA DE S. M.
C. de San Francisco, 4.
EL TERROR DE 1824