Reluctant Vengeance: Canada at the Tokyo War Crimes Tribunal
（東京裁判におけるカナダの役割）
John Stanton*
SUMMARY IN JAPANESE：国際問題に対するカナダの自由主義的理想論は、対極にある強い現実主義の存在故にその姿を変えた。カナダの国際活動に見られるこれらの二つの要素は、戦争犯罪に対するカナダの対応に顕著に表れている。カナダは軍事法廷に見られる「報復」という考えに懐疑的であると同時に、戦争の勃発を「国際法に照らし合わせた犯罪」として単純に位置づけることにも疑問を持っていた。第二次大戦後、アメリカ合衆国の圧力によりカナダは連合軍最高司令部による極東軍事裁判に参加することを、無条件に受諾することになった。しかし裁判の実態は、それまでカナダが抱いていた戦争犯罪に対する猜疑心を一層強くする結果となった。近年の旧ユーゴ戦争犯罪法廷は、東京裁判に見られた法律と政治の問題を再び提起することとなった。この法廷におけるカナダの姿勢は、外交政策が伝統的な主権国家間の関係に基づくものから地球規模の理想論を重視したものへと変化していることを示している。
At the end of WWII, Canada
found itself in a position for the first time to develop an appropriate role
for a middle power in world affairs. Free of a colonialist past and committed
to world peace, Canada sought to contribute to the resolution of conflict
through moral suasion, mediation and strong support for justice through
international law. In support of this conventional picture, commentators
typically point to Canada’s active role in the establishment of the United
Nations in 1945, Prime Minister Lester Pearson’s Nobel Peace Prize for Canadian
diplomacy during the Suez crisis in 1956, and Canada’s continuing enthusiasm
for peacekeeping operations. Less often mentioned is that fact that the
one-worldism associated with Pearson and his Ottawa colleagues was moderated by
a sharp sense of the realities of power politics. In practice, their liberal
idealism was tempered behind the scenes with a considerable scepticism about
the wisdom of crusades and an emphasis on agreements between sovereign nation
states as the basis of international relations. The attempt by the Allied
Powers to punish the “arch villains” of WWII for “crimes against humanity”
makes a case in point.
The first warning of what was to come surfaced when Great Britain, under pressure from the governments-in-exile in London, proposed in October of 1941 that the Commonwealth and Allied governments issue a formal declaration condemning German atrocities and promising punishment by organized justice:
…brutalities which are being
committed in occupied countries are contrary to the dictates of humanity; are a
reversion to barbarism and will meet with sure retribution…. Careful record is
being kept…so that in due time the world may pronounce its judgement. With
victory will come retribution.[1]
In response, President
Roosevelt made a guarded public statement condemning what he called the
frightful acts of desperate men, which only sowed the seeds of hatred and which
would one day bring “fearful retribution.” Prime Minister Churchill, less cautious
than the American president and his own civil servants, immediately declared
that “Retribution for these crimes must henceforward take its place among the
major purposes of the war.” Meanwhile the governments of the occupied countries
issued their own joint declaration that the punishment of those responsible for
war crimes was among their principal war aims. With this encouragement,
Churchill raised the issue again in his meeting with Roosevelt in July, 1942;
the Americans responded by suggesting the establishment of a “United Nations
Commission for the Investigation of War Crimes” to investigate atrocities and
report from time to time to the Allied governments. On October 7, 1942, Lord
Symon announced the establishment of the new Commission and the determination
of the Allies to punish those whose actions violated every tenet of humanity.
Canada responded to these
initiatives hesitantly and only reluctantly. The Cabinet agreed in principle to
support an Allied statement condemning atrocities, and to allow Vincent Massey,
the Canadian High Commissioner in London, to attend the public signing ceremony
of the exiled governments’ joint declaration, but strictly as an observer. In
general, Ottawa regarded the problem of war crimes as essentially a European
one, of concern mainly to the occupied countries. Canada’s interest in the
issue was slight, at best. Moreover, talk of revenge stirred up memories of the
attempt to “Hang the Kaiser” as chief war criminal at the end of the First War—a
misguided Imperial policy decision the wisdom of which Sir Robert Borden and
others had doubted at the time, and, in hindsight, a practical fiasco.[2] The threat of
retribution might have some potential utility as a weapon of political warfare
which could be used to drive a wedge between the Axis leadership and ordinary
people. “By punishing these war criminals, we are trying also to divide the
German people and their leaders whom we brand as criminals,” noted one
official; “we hope that when things really start to go bad for the Axis, these
people will remember our statements that we are only after the war criminal and
that they will get rid of them.”[3] Both the public
and the government saw this as “wishful thinking.” A survey of opinion in late
1942 found that most of those interviewed believed that threats of “getting
even” would be likely to prolong the war by goading the Germans to fight to the
end and not surrender.[4] The Cabinet
agreed:
It does not believe there
will be extensive punishment of war criminals by judicial process after the
war, and it believes it is poor political propaganda now—propaganda calculated
to extend the duration of the war, and take the lives of many Allied soldiers,
that gives to the enemy peoples the repeated assurance that the moment they lay
down their arms, they will be killed. A man with his back to the wall will
hardly be persuaded to surrender under such conditions.[5]
Meanwhile
in London, plans for a United Nations Commission were pressed ahead. Asked to
appoint a Canadian representative, Ottawa stalled, uneasy about getting drawn
in. British officials warned that the Soviet Union wanted more than a
fact-finding body; any suggestion, they cautioned, “of an International Court
to try war criminals should be deprecated.”[6] Norman
Robertson, the Undersecretary at External Affairs, drafted a reply for
Mackenzie King’s signature politely declining the invitation, and the chairman
of the new War Crimes Advisory Committee argued that there was no need to
appoint anyone to the Commission “as it will be largely occupied with wholly
European problems.”[7] But a refusal
would put the government in the awkward position of appearing unconcerned about
the suffering of the victims of fascism. Granted that participation was a “waste
of time,” if the Commission confined itself to investigating and publicising
atrocities, then representation carried no commitments as to the general policy
Canada would follow in regard to war criminals. With this caveat, there would
be no objection to Massey attending meetings of the Commission, since he was
already in London. However, the ground rules were to be quite clear, as would
Massey’s role:
…you, as the Canadian
representative, are instructed to exercise, so far as lies within your power, a
moderating influence in the deliberations of the Commission…. In other words,
you are instructed to make it clear the position Canada takes is that it would
be a mistake…to weigh too heavily punishment of war criminals as an expression
of United Nations policy; that it is [sic]
the interest of victory Allied statements on the subject should be restrained,
and if possible, the temper of the avowals of retribution, progressively
stepped down.[8]
Canadian participation in the work of the Committee would be limited to
questions of direct concern to Canada, and continuing representation on the
Committee would depend partly on the character of the Commission’s work and of
its personnel.[9]
There remained two Canadian
interests to be resolved. The first involved specific acts against individual
Canadians in violation of the “established rules and customs of war”—an issue
with which the Department of National Defence was understandably concerned. The
second was the matter of international law, and what, if anything, the
prosecution of war criminals might contribute in the way of precedent or
confirmation. While the Crown’s legal advisors produced lengthy memoranda
cataloguing international treaties that might conceivable apply, their
conclusions were ambiguous at best. The most relevant agreements appeared to be
the Hague Convention of 1907, establishing “The Laws and Customs of War on Land,”
and the Geneva Convention of 1929, “Relative to the Treatment of Prisoners of
War.” Aside from internal contradictions and doubtful language, it was unclear
whether the second superseded the first—a matter of some moment, since Japan
was a signatory of the Hague Convention, but not the Geneva Convention. As to
the question of “crimes against humanity,” the best the lawyers could suggest
was that a case might be made on the basis of the “spirit” of the Hague
Convention, based on the wording of the Preamble:
Until a more complete code
of the laws of war can be drawn up, the High Contracting Parties deem it
expedient to declare that, in cases not covered by the rules adopted by them,
the inhabitants and the belligerents remain under the protection…of the law of
nations, derived from the usages
established among civilized peoples, from the laws of humanity, and from the
dictates of the public conscience.[10]
Nor did
there appear to be any legal basis for an international tribunal, the proposal
by the Vienna Conference of 1926 to establish an International Court having
come to nothing. Obviously, a United Nations convention could establish such a
tribunal, but “I fail to see,” noted one advisor, “how it could be binding on
the people of enemy countries whose Governments had not been signators to such
a Convention.” The Defence Department’s legal expert agreed: while
acknowledging that some international jurists “declare that the right to punish
war criminals is something that comes from victory and that the victor should
not be hampered by any difficulties in the path of effectively deciding what
constitutes war crimes, and how war criminals shall be punished,” the legal position
was dubious:
If there does not exist such
[international] law, then the punishment of war criminals whether it purports
to be according to legal principle and procedure or a matter of political
expediency, is clearly a privilege flowing from victory and is in that sense,
ex post facto legislation.[11]
His legal colleague at External seconded the general conclusion: “I
have doubts personally, that from a strictly moral point of view, the United
Nations would be entitled to demand the surrender of the war criminals and to
try them, but we should be quite clear that this is not a legal procedure but a
political procedure.” The government should think carefully, he cautioned,
before participating in any ex parte international
tribunal, lest the result come back to haunt them.[12] What
contribution such a tribunal might make to international law, if any, was
difficult to foresee.
In sum, not a set of briefs
calculated to fire the enthusiasm of the lukewarm policy-makers at External and
especially not the ultra-cautious politician in the Prime Minister’s Office.
This left the matter of specific offences against members of Canada’s armed
forces. J. E. Read, External’s legal advisor, noted that the actual number of
incidents would likely be few, and mainly confined to the treatment of Canadian
soldiers by the Japanese. In response to Mackenzie King’s concern that the
government be seen to be dealing with them in “an effective and dignified
manner,” Read suggested setting up a small committee with a non-government attorney
in an honorary capacity to examine whatever evidence came to light: “the
thought is that these modest arguments” will provide the Canadian government
all that is needed to pursue its interest in crimes against Canadian nationals.
Norman Robertson, the Undersecretary at External, agreed. “This course,” he
advised the Prime Minister, “might well be a first step in dealing with a
difficult and unsatisfactory problem.”[13] King approved,
and for the next two years the war crimes issue was put neatly at arm’s length—into
the hands of an obscure War Crimes Advisory Committee of minor functionaries
headed by an “honorary advisor”—and safely off the front pages.[14]
While the tide in Europe and
the Far East began to shift in the Allies’ favour, the question of what would
happen at war’s end remained in limbo. Newspaper editors might complain that
there was too much “fine talk” about how the U.N. was going to punish the
aggressors: “it is to be hoped that the authorities are now laying the
groundwork for these trials….”[15] In reality,
little was being done. For the next year and a half, the special committee met
sporadically and debated this or that aspect of war crimes and criminals,
generally from the standpoint of the legal niceties involved. Committee members
decided early on that Canada’s interest in the “punishment of the
arch-criminals, Hitler, Tojo, etc.” would be “extremely limited,” and that “their
trials might have to rest on a political rather than legal basis.” The
committee focused instead on atrocities committed against individuals by
members of the enemy forces. In its first annual report, the committee noted
that they had found little evidence of actual war crimes. While there had
undoubtedly been some suffering by civilians, “these people were victims of [the]
hardships of war” rather than atrocities of the military. While there was “insufficient
evidence available to justify any conclusions
as to the treatment to which
military prisoners of war are being subjected…. There is some justification for
the view that atrocities committed may have been confined to the brief period
of time before proper discipline was restored in the occupied territory.”[16]
By now Arthur Slaght, who initially had been pleased to accept
appointment as Honorary Counsel, had decided that the war crimes committee was
a waste of time, while Vincent Massey—the Canadian High Commissioner in London
and sometime delegate the U.N. War Crimes Commission—reported to the Prime
Minister that he felt, “speaking personally, that there was an element of
unreality about this while question.”[17]
Reality
arrived with D-Day. The alleged execution of Canadian POWs by the SS major
general Kurt Meyer in Normandy, revelations of authorities against the
population of occupied Europe, and opening of the concentration camps put the
issue back on the front pages and touched off demands for vengeance. Slaght
abandoned his careful reading of the law, which he now thought too restrictive,
and demanded that the perpetrators be publicly whipped. Meanwhile an aroused Canadian
public was suddenly demanding that the government “mete out swift justice” to
the “Fascists and their henchmen.” Anyone, no matter how highly placed, who in
any way condoned, aided or abetted the attack on democracy and civilization
should be made to answer for their crimes—preferably by an “imperial court of
international justice.”[18] Even friends of
the government were grumbling about why Canada was not pursuing the punishment
of war criminals, and member of the advisory committee reported they were being
asked the same question.[19]
The government handed out
press releases pointing to the advisory committee and stressing the problems of
prosecuting known criminals, while it considered the problem.[20] J. E. Read
warned that the War Crimes Advisory Committee was getting out of control, and
the likely result would be serious criticism of the government in both
Parliament and the press. What to do? On the one hand the U.N. Commission was
such a mess that
it is now almost certain
that war crimes business will be a fiasco…. it will take such a long time for
the UN to make up their minds about anything that the whole problem will
gradually peter out. It also seems certain that the war crimes in which there
is a Canadian interest will be insignificant.[21]
On the other hand, “it is inevitable that the Canadian public should
want the Government to establish some machinery for the punishment of those
responsible” for war crimes. Unless the government responded to the public’s
demands, it would wind up being pilloried for its “failure to deliver a lot of
non-existent war criminals.” At the same time, the government had to respond in
such a way that it could not be charged with any responsibility for the
inevitable fiasco. The best solution, Read advised, was for Canada to make sure
the whole responsibility for dealing with war criminals was put securely in the
hands of the Allied countries, the U.N. Commission, and/or SHAEF. The Canadians
should just turn over whatever information they might have, and keep itself at a
safe distance. Robertson, the Deputy Minister at External, supported this
approach.[22]
Hence, when asked in August,
1945 to adhere to the Moscow Declaration signed by Roosevelt, Stalin and
Churchill in October of 1943 on behalf of the 32 United Nations, and to
associate itself with the decision by the Big Four to set up an Inter-Allied
Military Tribunal to try the Nazi “arch criminals” at Nurnberg, Canadian
officials were unenthusiastic:
It might be considered that
the dignified response would be to adhere to this agreement. Having in mind the
appalling mass made by the United Nations Commission, it is impossible
seriously to criticize the Big Four for acting as a small group without
consulting anybody. By adherence we would protect our technical position, and
at the same time, accept responsibility for a course of events over which we
have no control. On the other hand, it might be considered that we should not
adhere to an agreement in the negotiation of which we had no part and in the
carrying out of which we were not consulted.[23]
When pressed on the agreement that Canada would be the only U.N. member
not adhering to the Declaration, that Britain was anxious that Canada be
involved, and that only those states adhering to the Four Power Agreement could
send observers to the trials, the Prime Minister responded curtly: “This does
not impress me at all….”[24] Ottawa still had
reservations about the legality of the tribunal, about the standards used to
determine “which criminals are ‘arch’ and which are not,” and about the U.S.
expedient of declaring entire organizations—the Gestapo, S. S., etc.—“criminal
conspiracies” and charging their members on that ground. While Canada took the
position that its interest was confined to individual crimes against Canadian servicemen,
the Americans argued that it was the larger design that mattered—not the
prosecution of individual crimes “by men unbalanced by war,” but the criminal
policy and criminal system.[25] When it came
time to vote on the question of whether “crimes against peace” and “crimes
against humanity” were, in fact, war crimes, within the jurisdiction of the UN
War Crimes Commission, Canada abstained.[26] The American
view—that “speedy trials are more important than the presentation of
meticulously prepared cases”—was one to which Ottawa was decidedly cool.[27] Other than its
signature on the United Nations Charter, Canada kept its distance from what
continued to be seen as a doubtful political exercise.
The politicians and
bureaucrats might be content to stay aloof and debate high policy and
international law; the soldiers took a decidedly more pragmatic approach:
While the Commission and the
Governments were frolicking in the heaven of legal concepts, the Armed Forces
were engaged in the earthier occupation of getting evidence of war crimes on
the spot. The several Supreme Commanders appear to have operated spontaneously
and without any great direction ab extra.[28]
Canadian military authorities, who had set up their own war crimes
investigating unit, shared in the rough-and-ready attitude of the troops toward
dealing with the problem. Law was one thing, justice another, noted
Lieutenant-Colonel Macdonald, the officer in charge: prosecutions were “not
intended to involve legal technicalities, guilt or innocence being largely determined
as a matter of common sense.” Colonel Orde, the Judge Advocate General, agreed:
There is much to be said in
support of this view, particularly having regard to all the circumstances which
have led up to the prosecution… and the fact that we as conquerors propose to
punish those of the defeated enemy who violated the commonly accepted tenants
of decency and humanity.
“The question really boils itself down to policy rather than law,”
continued Orde: still, “to my way of thinking, it would be a violation of some
of the fundamental principles for the maintenance of which we strove, if we
were to adopt the ‘tu quoque’ attitude and did not give to an accused a
reasonable and proper day in court.”[29] By now, the
Department of National Defence had collected evidence from returning soldiers
and prisoners of war, and identified some 58 individuals it wished to
prosecute. Two difficulties had to be dealt with: Canada had no acts or
statutes covering war crimes, and no occupation force in the Far Eastern theatre
to manage trials.
To remedy the first, the War
Crimes Advisory Committee, with the support of the Deputy Ministers of Defence
and Justice, recommended that Cabinet use the authority of the War Measures Act
to issue an Order-in-Council covering the custody, trial and punishment of
those on the Defence Department’s list. In this way, an emotional debate on the
floor of Parliament could be avoided, and the issue confined to “crimes
involving death or grievous harm to Canadian civilians or service personnel.”[30] The Prime
Minister agreed, and the War Crimes Regulations (Canada) were issued the same
week.[31] In a statement
to the House of Commons in September, Mackenzie King downplayed the government’s
step, stressing that the new war crimes courts would be established under
military law with personnel from the judge advocate general’s staff familiar
with the laws and usages of war, that the regulations were similar to those
established by both Britain and the U.S., and that the proceedings would be
conducted with “dignity, fairness and justice.”[32] Despite King’s
attempt to mute the reaction, headlines in the evening papers made it clear
that a restrained approach to the question of war crimes was going to be
difficult to maintain.[33]
Somewhat surprisingly, the
professional military men at the Department of National Defence tended to be
among the most moderate in their objectives. Rather than retribution, DND
seemed mainly interested in a recognition by their former adversaries of
wrongdoing. “It should be noted,” observed the Deputy Minister, “that the
Japanese were never signatories to the Geneva Convention prior to World War II,
and that they do not therefore consider that what we define as War Crimes, were
anything other than the operations of war.” In the view of serving officers
the definition of War Crimes
appears to be well understood in text books on military and international law,
but some recognition of a definition on the part of the Japanese would be most
desirable…. In other words… the Japanese should admit the existence of War
Crimes… and should further admit that their nationals had committed them, and
that it was equitable and just that such persons should have been tried for
these crimes, and finally that their convictions and sentences were a logical result
of their breach of moral, if not international, law.[34]
In practice, once the trial had been held and the sentences handed
down, the chief Canadian military prosecutor recommended that those sentences
be served in Japan where they might be mitigated by the application of local
laws—pointing out that “Japanese law was quite generous in remitting sentences
after a portion of same had been served.” Given that the original point had
been made by an acknowledgment on the part of the Japanese in the final Peace
Settlement of the legitimacy of the military trials, then the Deputy Minister
recommended that External consider a limited amnesty to include “all crimes not
likely to merit capital punishment.”[35]
Since there was no Canadian
occupation force in the Far East, it would actually be impossible to convene
military courts under the newly passed War Crimes Regulations to try the
accused. Given that it was impractical as well as undesirable to move the
prisoners back to Canada for trial, arrangements would have to be made with the
United States (or in the case of crimes committed outside the U.S. zone of
occupation, the British) for trial and punishment. Canadian authorities
expected no problems in arranging an accommodation, and in the case of the
British this proved true. The U.S., however, expected a quid pro quo: Canada’s participation in an International Military
Tribunal to be established by the Supreme Commander in Tokyo. As part of
MacArthur’s plan, Canada would be expected to contribute both a judge and a
chief prosecutor.[36]
The Canadian authorities now
found themselves backed into a corner. Ottawa continued to see any Canadian
interest as strictly confined to violations of the “rules of war” which had
resulted in the death or serious injury of Canadian servicemen or prisoners of
war. Doubts about the U.N. Commission’s more ambitious goals remained as strong
as ever. Although nearly all the cases of war crimes against Canadians
identified by C.M.H.Q. took place in the Far Eastern theatre, Canada had
refused to join the Far Eastern Sub-committee of the War Crimes Commission
after the idea was strongly discouraged by External, based on the mess the
Commission had created in Europe.[37] In fact,
dissatisfaction with the situation in Europe led officials to suspect as early
as May, 1945 that the United States might act on its own initiative in the Far
East, and their suspicions were confirmed by Massey in mid-August (although the
U.S. delegate to the War Crimes Commission claimed ignorance of any definite
plans).[38] It was also
clear from the reports of military personnel sent to Washington, that the U.S.
officials expected Canada to support SCAP’s intentions.
Aside from meeting with
their opposite numbers in the U.S. Judge Advocate General’s office,
Lieutenant-Colonel Jennings and Group Captain Strathy were also interviewed by
Joseph Keenan from the U.S. Justice Department, already designated as the Chief
Prosecutor for the Far East war crimes trials, and with Garretson from the U.S.
State Department. “Both Mr. Keenan and Mr. Garretson,” the Canadian officers
reported, “emphasized that the United States wishes to avoid a repetition of
the procedure followed in the preliminary arrangements for the Nuernberg
trials.” Instead, the charter and rules of procedure for trials in the Far East
would be drawn up by General MacArthur, and then other governments approached
to collaborate. Once other governments had agreed in principle to the U.S.
policy, there would be no further negotiations with or reference back to those
governments regarding the functioning of the “international” courts. Keenan
also made it clear that even if no other governments chose to participate, “the
United States is prepared to proceed with the trials of major war criminals
under General MacArthur…but Mr. Keenan was naturally desirous that his hand be
strengthened by full co-operation from the nations concerned.”[39] Lest the
visitors should miss the point, Keenan dropped the diplomatic niceties for some
plain speaking about what was expected of the Canadian ‘cousins’:
Mr. Keenan left no doubt in
our minds that the United States is very anxious that Canada should appoint
three judges, of whom at least one should be a civilian, preferably an
outstanding Canadian judge….in our discussions it [also] seemed apparent that
the United States authorities, and particularly Mr. Keenan, were most anxious
that Canada should nominate a prosecutor….[40]
Given its reservations about
the legality and wisdom of pursuing “arch fiends,” Ottawa had confined its
interest to what were now termed “minor” war criminals—also the main focus of
an aroused public opinion. Canada had not been invited to participate in the
Four Power Agreement and had not adhered to it.[41] But it was now
trapped by circumstances. Canadian officials hoped that the Defence Department’s
list could be dealt with speedily, punishment meted out, the public satisfied,
and the file closed. Without the assistance of the United States, that could
not be done.
“If Canadian interest in the
punishment of such persons [individual Japanese accused of associates against
Canadians] is to be protected,” Robertson advised the Prime Minister, “…these
arrangements should be concluded as soon as possible.” King underlined the
final phrase, and noted: “I agree.”[42] But American
co-operation came at a price: “I take it to be apparent,” E. R. Hopkins
observed dryly in briefing Robertson, “that these arrangements could be
negotiated more readily if the United States plan, as a whole, is approved in
principle.”[43] The War Crimes
Advisory Committee prepared a memorandum for the Cabinet approving the U.S.
plan and authorizing the Minister of National Defence to appoint the judge and
prosecutor requested by Keenan.[44] On January 19th,
General MacArthur proclaimed the establishment of the International Military
Tribunal for the Far East. Canada would now be a reluctant participant in
exacting vengeance for the waging of aggressive war.
With Cabinet approval, the
Canadian authorities moved quickly to confirm that the U.S. would handle the ‘minor’
cases that were Canada’s principal concern, and to identify suitable
appointments for the International Military Tribunal.[45] Meanwhile,
Brigadier General Henry Nolan, the Vice Judge Advocate General and an
experienced lawyer, was appointed Associate Prosecutor for Canada. The choice
of judge proved more difficult, since the U.S. preferred a military officer of
senior rank. When headquarters reported that the Canadian forces had no
officers above Brigadier with suitable legal qualifications, it was decided
instead to nominate a civilian with a military background.[46] External chose
Justice E. Stuart McDougall, a judge of the Court of King’s Bench, Quebec and a
serving officer during WWI. Although his expertise was mainly in corporate law,
McDougall’s position in Quebec meant he was used to dealing with the individual
cases in which Canada had a “vital” interest, Lieutenant-Colonel J. O. F. H.
Orr, the head of the investigation section at National Defence headquarters,
was put in charge of a Canadian War Crimes Liaison Detachment and despatched to
Tokyo with a team to look after Canada’s interest in the various lesser trials
set up by the military authorities.[47]
In Tokyo, SCAP issued a
final Charter for the International Military Tribunal for the Far East in late
April, and the Tribunal brought down its indictment on April 29th of 28
Japanese leaders accused of conspiring to wage aggressive war and of crimes
against humanity. While Canada had been advised that the U.S. felt a single
trial of a small group of war criminals would not satisfy American public
opinion, Ottawa was assured MacArthur intended that the trials should not drag
on and seemed confident that the Tribunal would be able to complete it work in
about two months.[48] Instead, to the
growing dismay of Ottawa, the Tribunal threatened to drag on interminably.
The dismay deepened when
reports began to arrive back from Tokyo. While officials continued to have
reservations about the legitimacy of the Tribunal’s objectives, Canada’s
participation had been rationalized on the grounds that the exercise would be “educational”
for the Japanese public—that it would stimulate a sense of responsibility for
national policy. But Herbert Norman’s despatches dashed those hopes. The
Japanese spectators, aside from those with a personal interest in the
defendants, were mostly “courtroom habitués” and law students interested in the
American and English style of jurisprudence. While the Japanese-language press
did cover the proceedings “rather fully,” Norman had it on good authority that
their extensive reporting was not a response to public interest, but resulted
from “the intervention of the Supreme Commander who discovered originally that
the Japanese press was not paying proper attention to the trials and who
intimated that it would be in the interests of” Japanese publishers if they
gave the trials more coverage.[49] Whether that
coverage was having the desired effect was also questionable. Reporting in the
dailies tended toward description of the defendants or historical articles on
international law; when writers did comment on the proceedings, the educational
result sometimes fell well short of what SCAP might have hoped, as in the case
of Tojo Hideki:
In evaluating Tojo’s
testimony, most journals tended to be critical of the wartime leader, although
in several cases there were innuendos of admiration…. Moreover, much of the
criticism expressed was on the basis of responsibility for defeat rather than
for initiation of an aggressive war. Thus YAMATO TIMES (Nara, 29 December)
noted that if Tojo were responsible for initiating a war which he feared could
not be won he was consequently responsible for the defeat and should apologize
to the people….
While Norman’s despatches
may have been disappointing, the comments of Brigadier Nolan and Justice
McDougall were genuinely disturbing. The length of time covered by the
indictment—more than fifteen years—the number of accused, and the hundreds of
witness to be heard from led to a lengthy and drawn out trial. To make matters
worse, Nolan reported, the difficulties in making a literal translation from
English to Japanese meant the simultaneous-translation system installed in the
courtroom rarely worked except in the case of previously translated prepared
statements; meanwhile the American defence attorneys assigned to the defendants
consistently delayed the proceedings by “every form of motion, objection and
interjection known….”[50] MacArthur’s
promise of a speedy trial and quick resolution now seemed like wildly wishful
thinking.
Aside from organizational
problems, there were much more fundamental issues, as Justice McDougall made
clear in his letters to Louis St. Laurent.[51] It appeared to
McDougall that “the United States government either did not take the
constitution of the Court seriously” or the “repercussions in Washington
political and judicial circles from Nurnberg” resulted in incompetents being
appointed to take charge in Tokyo. As a result, basic procedural issues were
dealt with in a way that destroyed whatever credibility the Tribunal might
have. As an example, McDougall pointed to the handling of pretrial defence
motions attacking the jurisdiction of the Tribunal: instead of receiving a
carefully argued response legitimizing the court and the Charter as an
expression of international law, the motions were dismissed out of hand, with
the reasons for dismissal “to be given later.” As a result of this and similar
procedural errors and high-handedness:
We have now reached the
point where it is obvious that not only is the trial futile but that the final
judgment will have the effect of detracting from rather than adding to useful
jurisprudence in International Law….it is impossible to hope that the final
judgment with an indictment of fifty-five counts and twenty-six accused can be
anything but a complete failure even from a political point of view.[52]
To make matters worse, the President of the Tribunal insisted, despite
his lack of experience, on running the trial and preparing the final judgment
on his own. He refused to accept help or advice from the other judges, or even
discuss basic questions with them.
Meanwhile the Bench was a
shambles, with various members ignoring the Nurnberg Judgment and any attempt
to uphold international treaties, preferring instead to make law by their own
lights:
Two of the members take the
extraordinary view that not withstanding their appointment, they are entitled
to hold that aggressive war is not a crime and in their opinion it is not a
crime…. The President, after issuing a memorandum upholding aggressive war as a
crime not on the basis of the Briand-Kellog Pact of 1928 and the other
conventions referred to by Nurnberg, but on the basis of what is now being
called Natural Law, then shifted his ground and now holds the view that the
Charter is merely the giving effect to the “Contract” entered into by the
Allied and Japanese Governments by the Instrument of Surrender of 2nd September
1945. Another member maintains that neither the Charter nor International Law
govern the proceedings, but Natural Law which in his view is determined not by
the opinion of the writers and philosophers from the earliest days but is
determined by the feelings in the heart of each man (le bon coeur). The other
members of the Tribunal have not expressed their views except with destructive
criticism of the work of the others.[53]
The procedural errors, the willingness to ignore established
precedents, the lack of consensus, and especially the determination of
colleagues to invent their own theories of jurisprudence led Justice McDougall to
a disturbing conclusion:
I am convinced that the accused have not had and cannot have a fair trial. You will therefore not be surprised at the conclusion to which I have come that if the Canadian representation could be withdrawn, Canada would in future avoid the opprobrium of having her representative participate in a judgment which will do credit to no nation and in future cases, should they arise, be used to justify the vengeance of a successful belligerent.
In view of all this, McDougall asked to be “relieved of the
responsibility of contributing on Canada’s behalf to what I am convinced will
be an international tradedy.”
When this
bombshell arrived in Ottawa, Lester Pearson (who had replaced Robertson as
Under-Secretary) immediately wired to Tokyo, London and Washington. “If things
are as bad as indicated,” he queried, “would it be better for the Canadian
member to resign or to continue to be associated with developments which may
become increasingly difficult to justify?”[54] The replies were
not encouraging. Hume Wrong, the Canadian Ambassador in Washington, explained
that because of the need to be extremely circumspect, and because the Tribunal
was under the control of the U.S. War Department, not the State Department, the
only fairly definite bit of information gleaned concerned Keenan, the U.S.
prosecutor. There appeared to be general agreement that “by reason of his
intemperance, if not for other causes as well, he is a definite menace to the
success of the trials”—which lent some credence to a part of McDougall’s
concerns.[55] Now in London as
Canada’s High Commissioner, Norman Robertson was more helpful. The British,
Robertson discovered, had also had reports from Lord Patrick, the United
Kingdom’s member of the Tribunal, which confirmed “in all respects” McDougall’s
misgivings. Patrick had enclosed with his reports copies of similar letters
from the New Zealand judge to his government. “The Lord Chancellor,” Robertson
cabled back
is considering the position
with the Foreign Secretary and Dominions Secretary, but as yet they do not see
how our Government and our representatives can be extricated from an extremely
unsatisfactory and embarrassing position.[56]
The U.K.’s political
representative in Tokyo had been asked to discuss the situation of the Tribunal
informally with General MacArthur and to suggest a visit to Tokyo by the
Chairman of the UN War Crimes Commission; in the meantime, the British asked
that Canada not act unilaterally or take any final decision with regard to
Canada’s representative on the Tribunal. “They consider that his withdrawal at
this juncture would be most unfortunate.” From Tokyo, Herbert also urged
caution:
The retirement from the
Tribunal early in the case of Mr. Justice Higgins, the United States member,
caused bitter criticism in Tokyo, and particularly amongst Americans
themselves, although he was at once replaced by Major-General Cramer. Apart
from the legal question of the propriety of such a replacement after the
commencement of the trial, it seems quite clear that it is now too late in the
case for a replacement for Canadian members [sic] should he resign his appointment. That would leave the
Tribunal without Canadian representation, would certainly tend to impair the
prestige of the court, and in view of the fact that it is in its closing phase,
even though it may still last for some time, would make such a unilateral
withdrawal on Canada’s part exceedingly difficult to justify.[57]
Meanwhile, MacArthur resisted the proposed interference by the UN War
Crimes Commission—an idea which McDougall had already dismissed as ineffectual
if not downright dangerous.
Given the circumstances,
Ottawa could not approve McDougall’s resignation on the grounds that it had not
been functioning to Canada’s satisfaction. But something had to be done before
Justice McDougall decided to make good his threat to simply pack his bags and
come home. The heat and humidity of Tokyo’s notorious summers suggested a
possibility. “If,” speculated one External official, “Judge McDougall’s
personal health would be jeopardized by his staying another summer in Tokyo, I
think it would be difficult for us to ask him to stay on, against his doctor’s
advice.”[58] A letter for St.
Laurent’s signature was drafted accordingly, explaining that while the
government could not, for diplomatic reasons, accept Justice McDougall’s
resignation
At the same time….I do not
feel I can ask you to remain another summer in Tokyo if you consider that such
a stay would be gravely prejudicial to your health….would it be possible for you
to take leave for the summer for reasons of health? If this could be arranged,
it would give us an opportunity to discuss the whole situation there and come
to some decision as to whether you should return to Tokyo in the Autumn.[59]
Although the Tribunal did
recess for the summer, the breathing space produced no solution to the problem.
In the end, McDougall agreed out of a sense of duty to return for the final
year of sittings. Not until November, 1948 would the Tribunal finally deliver
its verdicts and sentences. As McDougall predicted, the judgment was marred by
dissenting opinions and by statements by the French, Chinese, and Australian
judges criticizing the indictment on the grounds that the Emperor had not been
charged. Ottawa was just glad to see it over.
Having finally managed to
extract itself from this unhappy experiment in international justice, Ottawa
was determined not to get drawn in again. When Keenan, the U.S. Chief Counsel,
proposed to try a further 50 “major war criminals” and SCAP approached Canada
for its views, Ottawa had no interest in participating—if the U.S. was
determined, the suspects could be tried by the Occupational Courts. In the end,
most of the prisoners were released.[60] But SCAP tried
again to enlist Canada for the trial of Lieutenant-General Tamura Hiroshi for
crimes against humanity, on the excuse that Canadians were among the victims—but
mainly, Norman advised, to try again to give the trial an “international
flavour.” The reaction in Ottawa was firm. External was convinced “…Canada
should avoid further participation in the trials of Japanese war criminals,”
while the Department of National Defence was not interested. In Brooke Claxton’s
opinion, Canada had already participated fully. The attitude of Canadian
officials was neatly captured by E. R. Hopkins’ pencilled instruction on the
correspondence: “Mr. Reid to note, smile, and file.”[61]
Ottawa also declined to
participate in further trials proposed by SCAP for 1949 of “B” and “C” class
criminals. Nor did Canada take part in war crimes trials in Korea, which
Canadian officials regarded as an illegal claim to authority by MacAthur. When
the wartime Order in Council establishing war crimes regulations was later
regularized by formal legislation (10 George VI Chap. 73), the original
definition of a war crime—“a violation of the laws or usages of war”—was
confirmed, notwithstanding Canada’s participation in the Tokyo Tribunal.[62] And Canada made
no statement on the draft Code of Offense Against the Peace and Security of
Mankind when it came to the floor of the United Nations during the Ninth
Session of the General Assembly.[63]
One question remain to be
dealt with: clemency and parole. Soon after the Tribunal handed down sentences,
Herbert Norman was called to SCAP headquarters (along with representatives of
the 10 other Allied powers) to advise MacArthur on the exercise of his right to
grant clemency. Norman cabled Ottawa for direction and was told to attend and “exercise
your judgment in any questions which may arise….” Norman protested and asked
for an indication of Canada’s position; rather than amplify on Canada’s
official views, Hopkins in Ottawa replied that Norman’s instructions were “adequate.”[64] Lacking any
direction, Norman was forced, presumably as expected, to be noncommittal. When
his turn came to speak, he advised MacArthur that
I did not in any way
challenge the judgment of the court but at the same time I was not for that
reason opposed in principle to clemency….I went to the meeting prepared to
discuss what I thought were two or three marginal cases where clemency might
properly be employed, but the atmosphere at the meeting, although friendly, was
not conductive to informal interchange of views….In the interview General
MacArthur simply began by asking one after another whether we agreed with the
judgment or not.[65]
The issues of the war crimes trials and their results would thus remain
moribund for another five years—until the United States, having second thoughts
of its own, proposed the grant of paroles to the war criminals convicted by the
Tribunal.
In November of 1952, the
Japanese government formally recommended, under Article 11 of the Peace Treaty,
that the governments represented on the Tribunal approve the release of the
remaining major war criminals being held in Sugamo prison. The U.S. State
Department, anticipating the formal request, had already taken the lead in
consulting the other governments in an effort to gain majority approval, in the
first signs of what appeared to be a change in the U.S. position on war
criminality:
I know from my conversations
with United States advisors at the Ninth General Assembly that United States
views on the Nurnberg Charter and the Judgment have changed though they
probably do not wish to say as much publicly.[66]
In fact, the U.S. had refused to support the General Assembly’s Draft
Code of Offenses Against the Peace and Security of Mankind, which was based on
the principles contained in the Charter and Judgment, the U.S. officials now
maneuvered to ensure the prisoners’ release. Although the British held that the
majority decision under Article 11 of the Peace Treaty meant a majority of the
governments represented on the Tribunal, the U.S. insisted that it meant a
majority of the governments which participated in the consultation over
clemency—with the Soviet Union and China excluded on the grounds that they had
not signed the Treaty. Given Canadian doubts about the whole exercise, Canada
was quick to support this position.[67] From the outset,
External identified Canada’s chief concerns as two: (1) that the majority in
support of clemency be as large as possible, and preferably unanimous, and (2)
any decision reflect a proper application of justice consistent with the
maintenance of international law and order. What was meant by “justice” in the
framework of war crimes became clear when the Deputy Minister of National
Defence wondered how the two could be reconciled:
If a Canadian decision
judicially made, were to be subject to change because of opinions rendered by
other governments concerned, then presumably there would be no point in a
judicial review and Canada might simply poll these governments and then vote
with the majority.[68]
The answer, as the officials at External explained patiently, was that
there was justice and then there was “justice”:
The Deputy Minister
apparently thinks that a Canadian review which takes the form of a joint
consideration of all twelve cases and which takes into account political
considerations could not be regarded as a judicial act. It has been the view of
this Department…that the term “judicial” could be relative as well as absolute
and that a review which gave an opportunity for political considerations to be
given some weight would still be a judicial review though not so much of a
judicial review as one which excluded such considerations.
I doubt that the majority of
governments concerned in view of the necessity to pay at least lip service to
the importance of safeguarding the IMFTE judgment, would be willing to admit to
us that they were prepared to base clemency decisions on political
considerations, even if they were so prepared.[69]
Since the Defence Department’s
main interest remained the “minor” war criminals, External prevailed and the
Canadian Cabinet directed the review committee to “take account of the fact
that…considerations other than those of law may be of major importance in
certain instances…” in determining clemency recommendations.[70] The other
governments were polled and it was apparent there was a consensus for early
release, with most favouring the British government’s proposal of an
unconditional discharge. The Cabinet approved this solution, but the U.S. was
wary of the “mass release” formula, both because of the reaction of American
public opinion and because the U.S. government was concerned that its approach
not appear to be a complete reversal of the policy it had adopted at the end of
the war.[71] To avoid both
problems, the Americans proposed that individual prisoners be released on “parole”
once they had served 10 years of their original sentence. Aside from its effect
on public opinion, the actual difference was minor: the prisoners would be
released one-by-one over several months and, since no elaboration of the term “parole”
was included (and since the signatories had no way of enforcing parole terms in
any case), it was, as the Canadian Ambassador at Washington pointed out, “synonymous
with outright release.”[72] The last Class “A”
war criminal, Sato Kenryo, was paroled on March 30th, 1956. “…I think,”
observed Arthur Menzies upon the release of Sato Kenryo, “that the problem of
Japanese war criminals has now come to an end for the Canadian Government.”[73]
The file would remain closed
for almost forty years. Not until the end of the Cold War would “war crimes”
again claim Canadian policy makers’ attention. In the interval, Canada greatly
expanded its role in world affairs, seeking to promote peace through
international co-operation. In pursuit of this goal, it preferred to ‘let the
dead past bury its dead,’ and to concentrate instead on eliminating the evils
of war by eliminating the causes of war. But the recent establishment of the
Hague Tribunal—the International War Crimes Tribunal for the Former Yugoslavia—and
its unprecedented decision to indict Slobodan Milosevic for “war crimes” raised
again the questions of international law and power politics that surrounded the
Tokyo Tribunal. As a result, Canada finds itself once more grappling with the
dilemma of war crimes and their prosecution in an international community.
Canada’s participation in the work of the Tribunal, including the presence of
Louise Arbour (subsequently appointed to the Supreme Court of Canada on 15
September 1999) as chief prosecutor for both the Yugoslavia and Rwanda
tribunals contrasts sharply to its reluctant involvement at Tokyo. In
particular, Canadian support for the Tribunal’s claims to supranational powers,
including the aggressive assertion of Western concepts of criminal law
regardless of the limits traditionally imposed by national sovereignty, signals
the shift that has taken place in Canada’s approach to foreign relations since
1945. Increasingly Canada has come to see its commitment to internationalism
more as a commitment to a global idealism based on morality and human rights,
and less as a commitment to an international order based on a framework of
agreements between nations reflecting political interests and state power.
* Visiting Professor of Canadian Studies, Kwansei Gakuin University, Nishinomiya, Japan
[1] “Punishment of War Crimes,” Memorandum by Marcel Cadieux, 15 April 1943, National Archives of Canada, Department of External Affairs, RG25/3033/4060-40C/2. In reality, British officials were less than enthusiastic about the idea: “In view of the experience at the end of the last war we think that a commitment to hunt down and try Germans guilty of atrocities might prove embarrassing. We can safely leave the Germans to the vengeance of their neighbours and we wish to keep our hands free….” Dominions Office to Governor General for Canada, 13 October 1941.
[2] RG25/3033/4060-40-C/2/4. Charged under the provisions of the Versailles Treaty by a “Commission of Responsibility”—15 jurists representing 10 powers—for a supreme offense against international morality and the sanctity of treaties, the Kaiser feld to the Netherlands before the tribunal could act. The Netherlands, in turn, refused to surrender him on the grounds that the tribunal was an instrument of political power, not a criminal court. Of the 344 other government officials and high ranking officers named, only six were eventually convicted; all received sentences and most were allowed to subsequently escape. It was not, in retrospect, an encouraging precedent.
[3] Ibid.
[4] Ibid. Financial Post, 24 October 1942.
[5] Note for the Undersecretary, 26 July 1943, RG25/3247/5908-40/1
[6] Great Britain, Secretary of State for the Dominions to Canada, Secretary of State for External Affairs, 6 August 1942, MG26 J1/334/285968; 13 November 1942, MG26 J1/337/286655. At this point in the war the Prime Minister, Mackenzie King, also acted as Secretary of State for External Affairs.
[7] Robertson to Mackenzie King, 28 November 1942, RG25/3247/5908-40/1; Arthur Slaght to J. H. Read, 22 December 1943, RG25/3247/5908-40/1.
[8] “Canadian Participation in the United Nations Commission for the Investigation of War Crimes,” 26 July 1943, RG25/3247/5908-40/1.
[9] “Canada and the Punishment of War Crimes,” 2 November 1943, RG25/3247/5908-40/1. Questions of direct concern to Canada were defined in the Cabinet’s decision, as “cases affecting Canadians or members of the Canadian armed forces”—a definition that excluded “crimes against humanity” or “crimes against morality.”
[10] NAC, Department of National Defence Memorandum by R. E. Curran, “In the Matter of War Crimes and Criminals,” 18 January 1944, RG25/3247/5908/1. (Italics added.)
[11] R. E. Curran, “In the Matter of War Crimes and Criminals,” p. 13.
[12] Cadieux, “Punishment of War Crimes,” p. 25.
[13] J. E. Read to Norman Robertson, 14 September 1943; Robertson to W. L. M. King, 26 September 1943, MG26J4/375/3935.
[14] The committee, consisting of Arthur Slaght, an Ottawa lawyer, as Honorary Counsel, Charles Stein from Justice, Group Captain Strathy from National Defence, with Lt. Commander Curran (later E. R. Hopkins) as Secretary and Read as Chair was eventually set up in November, 1943. In response to requests by journalists for information about war crimes Read argued against giving the Committee’s work any publicity and Robertson agreed, noting that he saw “no useful purpose in giving further details….” Minute by Robertson on J. E. Read to Deputy Minister, External Affairs, 29 January 1944, RG25/3247/5908-40/1.
[15] “Let’s Not Blunder This Time,” Financial Post, 16 January 1943. The editor reminded readers that previous attempts at punishing war criminals had been a “feeble spectacle.” “Surely,” he argued, “this time we can do better.”
[16] Minutes of the War Crimes Special Committee, 29 December 1943, RG25/3246/5908-40/1; First Annual Report of the War Crimes Advisory Committee, 31 December 1944, RG25/3728/5908-40/3. The Committee’s report must have been particularly frustrating for officials at the Department of National Defence who had advised that “while we have very little evidence relating to war crimes committed by German personnel, there is a large volume of material covering atrocities committed on Canadians and others by the Japanese.”
[17] Vincent Massey to Secretary of State for External Affairs, 28 January 1944, RG25/3247/5908-40/1.
[18] See, e. g., City of Toronto to W. L. M. King, 29 September 1944, RG25/3247/5908-40; Vancouver Labour Council to King, 28 May 1945; Niafara Falls District Trades and Labour Council to King, 17 May 1945; RG25/3247/5908-A-40; J. L. Kidd, Sudbury Mine and Smelter Workers Union to King, 24 September 1945; RG25/3641/4060-C-40C/1. Slaght thought that public whippings would have a healthy effect on the rest of the enemy population, and was frustrated when corporal punishment was dropped from Canada’s draft regulations. A. Slaght to J. E. Read, 30 June and 5 July 1945, RG25/3728/5908-40/4.
[19] N. Crawford to J. E. Read, 18 September 1945, RG25/3728/5908-40/4.
[20] “Canada Helping Atrocities Probe,” Montreal Standard, 16 June 1945.
[21] Vincent Massey to W. L. M. King, 28 January 1944; RG25/3247/5908-40/3; J. E. Read, “Memo for the Deputy Minister,” 16 January 1945, RG25/3728/5908-40/3.
[22] J. E. Read, “Note for the Undersecretary,” 13 November 1944, RG25/3247/5908-40; “Memo for the Deputy Minister,” 16 January 1945; “Memo for the Prime Minister,” 8 February 1945, RG25/3728/5908-40/3. “I think Mr. Read’s appreciation is correct,” noted Robertson for the Prime Minister.
[23] J. E. Read, “Note for the Under Secretary,” 29 August 1945, RG3640/4060-40/6.
[24] Minute on N. Robertson to W. L. M. King, 17 November 1945, MG26 J4/375/3935.
[25] Statement by Lt. Colonel Walker, Minutes of the Seventieth Meeting, U.N. War Crimes Commission, 18 July 1945, RG3640/4060-40/6.
[26] Massey to Secretary of State for External Affairs, 7 February 1946, RG25/3640/4060-40C. Other countries abstaining included China, France, New Zealand, Norway and the U.S.
[27] High Commissioner at Washington to Secretary of State for External Relations, 3 August 1945, RG3640/4060-40/6.
[28] E. R. Hopkins, “Report to the Heads of Divisions, Department of External Affairs,” 5 June 1945, RG25/3641/4060-40C/6. Hopkins was Secretary of the War Crimes Advisory Committee.
[29] R. J. Orde to J. E. Read, 12 September 1945, RG25/3728/5908-40/4.
[30] War Crimes Advisory Committee, “Note for the Prime Minister,” 21 August 1945, RG3640/4060-40/6.
[31] Canada, P.C. 5831, 30 August 1945. Under the regulations, a “war crime” was defined as “a violation of the laws or usages of war committed during any war in which Canada has been engaged… after the ninth day of September 1939.”
[32] H. C. Debates, 13 September 1945, Statement by the Right Hon. W. L. Mackenzie King (Prime Minister).
[33] “Canada Sets Up Courts for Trial of Foe Sadists: Can Order Execution of Huns or Japs…,” Toronto Telegram, 13 September 1945. In practice, the average sentence of those prosecuted was ten years, with four of the fifty-three sentenced to death (not including Inouye Kanao—the “Kamloops Kid”—who appealed his original military conviction on the grounds that he was a Canadian, and was subsequently re-tried and executed for treason).
[34] W. G. Mills, Deputy Minister, Department of National Defence to the Under-Secretary of State for External Affairs, 8 August 1947, RG24/2906/HQS8959-9-4.
[35] Ibid.
[36] Minutes of Extraordinary Meeting of War Crimes Advisory Committee, 21 September 1945, RG24/2906/4060-C-40C.
[37] E. R. Hopkins, “Memorandum for J. Read,” 30 May 1945, RG25/3738/5908-40/3.
[38] Ibid.; High Commissioner for Canada (London) to Secretary of State for External Affairs, 14 August 1945; 11 September 1945, RG25/3640/4060-40/6.
[39] R. D. Jennings and C. M. A. Strathy, “Trials of Major War Criminals,” undated [26 November 1945], RG25/3728/5908-40C/5.
[40] Ibid. The request for judges was later reduced to a single appointee, perhaps because more governments agreed to be involved that Keenan seemed to expect at this stage. A part of Keenan’s eagerness that Canada agree to participate might be explained by the terms of the U.S. scheme: “The Supreme Commander for the Allied Powers should have the power (a) to appoint special international military courts (which term should be held to include tribunals of any type) composed of military or naval officers or civilians of two or more of the United Nations….” At the time of the Canadian visit, a month after the Note had been circulated, Keenan admitted that no replies had been received from the governments solicited. Canada’s agreement would make it possible to style the trials the U.S. was determined on an “international tribunal”. See “Policy of the United States in Regard to the Apprehension and Punishment of War Criminals in the Far East,” n. d. [October, 1945], RG2At the time of the Canadian visit, a month after the Note had been circulated, Keenan admitted that no replies had been received from the governments solicited. Canada’s agreement would make it possible to style the trials the U.S. was determined on an “international tribunal”. See “Policy of the United States in Regard to the Apprehension and Punishment of War Criminals in the Far East,” n. d. [October, 1945], RG24/2906/HQS8959-9-4. Italics added.
[41] “Draft Memorandum to the Cabinet,” 27 December 1945, RG25/3642/4060-C-40/3.
[42] “Memorandum for the Prime Minister,” 12 January 1946, MG26 J4/375/F3935.
[43] E. R. Hopkins, “Far Eastern War Crimes,” RG25/3247/5908-40/1.
[44] War Crimes Advisory Committee, “Memorandum to the Cabinet,” 27 December 1945, RG24/2906/HQS8959-9-5/2.
[45] Ironically, the expectation that the DND list could simply be handed over to the U.S. military for trial was disappointed when the U.S. attached a condition to its acceptance: Canada would also be expected to provide a senior officer to sit on the military tribunals. Now thoroughly committed, Canada agreed to the condition. Cabinet approval was given on 16 January 1946; a copy of the Cabinet resolution is on RG25/36/4060-C-40/5. A second officer was seconded to the British.
[46] A. Ross, Department of National Defence to Under-Secretary of State for External Affairs, 31 December 1945, RG25/136411/4060-C-40/1.
[47] RG25/3641/4060-C-40C; the c. v. of Nolan and of McDougall are in MG31/E43/1.
[48] Great Britain, Secretary of State for the Dominions to Canada, Secretary of State for External Relations, 18 January 1946; Canadian Ambassador to Secretary of State for External Relations, 5 January 1946, RG25/3641/4060-C-40C/1.
[49] H. Norman, Canadian Liaison Mission, Tokyo to Secretary of State for External Affairs, Despatch No. 19, 23 January 1947, RG25/3642/4060-C-40/3.
[50] H. G. Nolan to Brooke Claxton, Minister of National Defence, n. d. [June, 1948], RG25/3642/4060-C-40/3.
[51] An aging Mackenzie King turned over the portfolio of Secretary of State for External Affairs to St. Laurent in the fall of 1946, and Lester Pearson was promoted to Undersecretary. Two years later, St. Laurent would replace King as Prime Minister, and Pearson become Secretary on his way to the Prime Ministership.
[52] S. McDougall to Louis St. Laurent, 19 March 1947 and 20 May 1947, RG15/89-90/029/42/104-5/5.
[53] Ibid.; The United States had, in fact, proposed in March, 1946 that the Japanese government join the Allies in bringing charges against Japanese war criminals—an idea dropped after the British strongly opposed it on the grounds that it would give the impression that Japan was an innocent, even wronged, party. Great Britain, Secretary of State for Dominion Affairs to Canada, Secretary of State for External Affairs, 7 March 1946, RG25/3641/4060-C-40/2.
[54] L. B. Pearson to Herbert Norman, 2 April 1947, RG15/89-90/029/42/104-5/5.
[55] L. B. Pearson to Hume Wrong, 2 April 1947; Wrong to Pearson, 21 April 1947, RG15/89-90/029/42/104-5/5.
[56] L. B. Pearson to N. A. Robertson, 2 April 1947; High Commissioner for Canada in Great Britain to Secretary of State for External Affairs, 8 May 1947, RG15/89-90/029/42/104-5/5.
[57] Norman to Secretary of State for External Affairs, Cypher No. 60, 5 April 1947, RGRG15/89-90/029/42/104-5/5.
[58] “Memorandum for Secretary of State for External Affairs,” 12 June 1947 [no signature], RG15/89-90/029/42/104-5/5.
[59] Secretary of State for External Affairs to Canadian Liaison Mission, Tokyo (Personal and Secret for Judge McDougall), 12 June 1947, RG15/89-90/029/42/105-5/5.
[60] H. G. Nolan to Head of Canadian Liaison Mission, 25 August 1947. The British reaction was much the same. See Great Britain, Secretary of State for Commonwealth Relations to Canada, Secretary of State for External Affairs, 3 December 1947, RG25/3642/4060-C-40/3.
[61] E. H. Norman to Secretary of State for External Affairs, 26 October 1948; D. M. Johnson to Deputy Minister of National Defence, 27 October 1948; B. Claxton to Acting Secretary of State for External Affairs, 13 November 1948; Deputy Minister of National Defence to Under-Secretary of State for External Affairs, 22 December 1947; RG25/3642/4060-C-40/3.
[62] As the author of the War Time Trial Law Reports noted, this was narrower than the jurisdiction established by the Charter of the International Military Tribunal which also included “what the Charter calls ‘crimes against peace’ and ‘crimes against humanity’.” United Nations War Crimes Commission, “Canadian Law Concerning Trials of War Criminals by Military Courts,” RG25/3641/4060-C-40/10.
[63] J. S. Nutt to G. Sicotte, 6 July 1955, RG25/36/4060-C-40/5.
[64] Secretary of State for External Affairs to Canadian Liaison Mission, Tokyo, 16 November 1948; E. H. Norman to Secretary of State for External Affairs, 17 November 1948; RG25/3642/4060-C-40/3.
[65] Left to his own devices, Norman later had second thoughts and wrote a lengthy personal letter to MacArthur explaining that as an individual he was opposed in principle to capital punishment, that he had recommended in the past, using examples from Japanese history, the exile to a remote island was seen as suitable punishment for political leaders convicted of the crimes of preparing and waging aggressive war—“offenses which today we would probably describe as political rather than criminal.” However since the Charter of the I.M.T.F.E. had provided for the death penalty, he had to accept it however much he personally disliked it. Norman then went on to encourage reductions of sentence in two cases, Shigemitsu and Togo, on humanitarian not legal grounds. E. H. Norman to L. B. Pearson, 24 November 1948, RG25/3642/4060-C-40/3.
[66] J. S. Nutt to Sicotte, 6 July 1955, RG25/87/336/4060-C-40/9.
[67] J. C. Parry, Legal Division Memorandum for the File, “Clemency for Japanese War Criminals,” [n. d.] RG25/86-87/160/4060-C-40/6; as E. H. Norman pointed out, the U.S. approach not only avoided arguments over which Canada should be represented, but an all ‘Western’ review tribunal would be “almost certain to agree to any reasonable recommendation for clemency…” E. H. Norman to Acting Under-Secretary, Extrernal Affairs, RG25/36/4060-C-40/5.
[68] C. M. Drury to Secretary of State for External Affairs, 23 March 1953, RG25/86-87/160/36/4060-C-40/5.
[69] C. F. McGaughey, Far Eastern Division, “Memorandum for Legal Division,” 9 March 1953, RG25/86-87/160/36/4060-C-40/5.
[70] “Memorandum to Cabinet,” approved 6 August 1953, RG25/86-87/160/36/4060-C-40/5. As A. M. Ireland noted, the U.S. now described major war criminals as having been convicted on “general” grounds—“a euphemistic term, meaning ‘political’ grounds—i.e., the making and waging of a war which eventually they lost. Of course they can be interned, but only because we won, not because of the law, which was only established after the fact.” Ireland to A. Menzies, 7 July 1955, RG25/36/4060-C-40/5.
[71] Draft Memorandum to Cabinet, 5 August 1955; Record of Cabinet Decision, 16 August 1955, “Clemency for Major Japanese War Criminals,” RG25/36/4060-C-40/6.
[72] Two years later, the U.S. proposed, and the others agreed, to quietly reduce the sentences of the ‘parolees’ to time served, effectively terminating their parole. Memorandum for the Minister, 7 January 1957, RG25/36/4060-C-40/6.
[73] A. Menzies to Legal Division, Department of External Affairs, 17 April 1956, RG25/36/4060-C-40/6.