War Crimes

Photograph of Bataan Death March victims
National Archives. Via Wikipedia.org.

War crimes were violations of the laws and customs of war. These laws and customs derived from the Roman doctrine of just war, which was Christianized by Augustine of Hippo, elaborated by Thomas Aquinas, and codified by the Geneva and Hague Conventions. This doctrine regarded lawful belligerency as the use of violence by one government against another as a remedy for a claimed grave injustice. The laws and customs of war sought to distinguish war from other forms of violence by defining lawful combatants and noncombatants; by prohibiting the use of military force against lawful noncombatants; and by providing rules for initiating and terminating hostilities.

The laws and customs of war protected civilians by forbidding looting, unjustified violence against the persons of civilians, attacks on undefended cities, and wanton destruction not justified by military necessity; and by requiring occupation forces to try civilians accused of crimes before a duly constituted military tribunal. Unlawful combatants, defined as persons who engaged in warlike activities while not part of a lawful chain of command or while not wearing a distinctive insignia visible from a distance, were regarded as bandits and had little protection under the laws and customs of war. Combatants could not be refused quarter (the opportunity to surrender) and enjoyed certain protections as prisoners of war. Perfidy (feigning negotiations under a flag of truce, feigning surrender, or feigning wounds in order to take an enemy by surprise) was also prohibited.

The laws and customs of war did not address the question of whether the war itself was justified, and they were not generally considered applicable to the conduct of a government towards persons living within its own territorial boundaries. In the face of massive evidence of evils committed by the Axis that were not covered by the laws and customs of war, the Allies developed a legal doctrine of crimes against the peace and crimes against humanity. Crimes against the peace were defined as the launching of wars of aggression or wars in violation of international agreements. Crimes against humanity were defined as the persecution of or the committing of atrocities against large groups of persons. The creation of these new categories of international crimes seemed justified in light of Axis conduct, but they were and are controversial, since they imposed new restrictions on national sovereignty and posed difficult definitional questions.

Although war crimes are still narrowly defined as violations of the laws and customs of war, the term "war crimes" has come to be broadly applied to crimes against the peace and crimes against humanity as well.

Japanese War Crimes

War is an inherently brutal activity, which is why Western liberalism regards it as the last resort, acceptable only in response to the gravest threats. It should surprise no one that atrocities were committed by soldiers and sailors of every nationality that participated in the Pacific War. However, there is also no denying that, with possibly one exception, atrocities committed by the Allies were sporadic and isolated, while atrocities committed by the Japanese were frequent and systematic, displaying a pattern of criminality that was condoned at the highest levels.

This pattern had deep roots. During the Boxer Rebellion and the Russo-Japanese War, the Japanese high command imposed iron discipline to ensure proper conduct by their troops, in a largely successful effort to demonstrate to Western observers that Japan was a civilized, modern nation deserving of a place among the great powers. However, while the Japanese largely treated their Russian prisoners of war correctly, the New York World reported that large numbers of Chinese had been massacred following the capture of Port Arthur. Though the original World estimate of 60,000 killed was a wild exaggeration, it is likely that some 2000 were killed in retaliation for Chinese mutilation of corpses. Rather than punish the perpetrators, the Japanese tried to conceal the incident.

Some aspects of this pattern in the Pacific War are as follows:

Crimes against the peace. Japan had engaged in a pattern of expansion since at least 1895, when China was forced to cede Formosa to the Japanese. This was followed by the seizure of Karafuto, the Kwantung Peninsula, and key points in Manchuria following the Russo-Japanese War of 1905, and the annexation of Korea in 1910. However, international pressure, together with increasingly liberal domestic politics, put a halt to Japanese expansion following the First World War.

With the start of the Great Depression and the rise of Japanese militarism and ultranationalism, Japanese expansion resumed, beginning with the seizure of Manchuria in 1931 and the China Incident in 1937. These actions, together with Japan's surprise attacks on the United States and Britain on 7-8 December 1941, were judged to be crimes against the peace by the postwar Allied tribunals, for which a number of Japanese statesmen and military leaders were sentenced to long prison terms. However, no defendant was sentenced to death solely for crimes against the peace, suggesting some ambivalence about these charges among the Allied judges.

Crimes against prisoners of war. These are described more fully in the article on prisoners of war. Particularly notorious episodes include the Bataan death march and the Burma-Siam railway. The Japanese also put intense pressure on Indian prisoners of war to join the Indian National Army, a collaborationist force. Those who refused were told that they were no longer prisoners of war and would be treated as heihos, auxiliaries, subject to Japanese military law. This policy of coerced recruitment largely backfired, as large numbers of troops from the INA deserted back to the British at the first opportunity.

Though uncommon, there were well-documented instances of Japanese troops eating the flesh of executed Allied airmen who had fallen into their hands. One such incident occurred in Burma and was the responsibility of the sinister Tsuji Masanobu. Other incidents occurred in New Britain. None of these incidents involved starving Japanese troops, whose cannibalism of their own casualties in New Guinea was a result of desperation. Tsuji encouraged his fellow officers to engage in cannibalism as a way to increase their hatred of the enemy.

Crimes against civilians. One of the first instances of Japanese brutality against Chinese civilians occurred in September 1937 at Tungchow in north China. In reprisal for the murder by a Chinese mob of a number of Japanese civilians, the Japanese Army went on the rampage for several days. This became the pattern for Japanese behavior in China thereafter.

Conditions in Japanese internment camps were often only marginally better than in prisoner of war camps. In addition, the Japanese committed a number of massacres of Asians, particularly in China. These included the single worst atrocity of the war, the Rape of Nanking, where perhaps 200,000 were killed. The Japanese later massacred Chinese nationals in southeast Asia, particularly at Singapore, where at least 5,000 (and possibly many more) Chinese were killed for alleged anti-Japanese sentiments.

The entire white population of Balikpapan was driven into the sea and shot in retribution for torching the oil fields. This was deliberate policy, as the Japanese Foreign Ministry had issued a secret memorandum on 4 October 1940 ordering that anyone destroying important natural resources in the Netherlands East Indies was to be "severely punished".

After putting down a revolt at Jesselton on 19 October 1943, the Japanese massacred most of the inhabitants of Suluk Islands, a few of whose leaders had been implicated in the revolt.

During the battle of Manila, some 100,000 Filipino civilians died, most of whom were deliberately killed by the Japanese. This reflected a pattern of deliberate brutality towards Filipinos. A captured Japanese diary had this entry for 19 December 1944 (Gilbert 1989):

Taking advantage of darkness, we went out to kill the natives. It was hard for me to kill them because they seemed to be good people. The frightful cries of the women and children were horrible. I myself killed several persons.

Crimes on the high seas. From the very beginning of the war, the Japanese routinely machine gunned survivors of merchant ships sunk by submarines or other warships. This was a deliberate policy discussed with the Germans even before the attack on Pearl Harbor. Both the Germans and the Japanese recognized the vast shipbuilding capacity of the United States and believed that the key to destroying the Allied merchant marines was the slaughter of the merchant mariners themselves, who were not as easily replaced as ships.

This policy was promulgated in the Navy General Staff's Directive 107, also known as the First Submarine Force Order (Kehn 2008). Issued on 1 March 1943 and in written form on 20 March 1943, it read: "Do not stop with the sinking of enemy ships and cargoes; at the same time that you carry out the complete destruction of the crews of the enemy ships, if possible, seize part of the crew and endeavour to secure information."

A particular notorious incident involved the MV Behar, sunk in February 1944 by a Japanese raid into the Indian Ocean. The cruiser Tone picked up 104 survivors, of whom 69 were massacred on the orders of the Southwest Area Fleet commander, Vice-Admiral Sakonju. Sakonju was hanged, while the captain of Tone, who had protested the order, was given a relatively light sentence of seven years imprisonment.

Allied war crimes

As previously noted, Allied war crimes were mostly sporadic and isolated. A small number of Allied submarine and PT boat commanders machine gunned survivors of sunken Japanese troop transports, claiming that because these military personnel refused rescue and would, if they were rescued by their own side, return to combat against the Allies, they were legitimate military targets. Although Allied senior commanders took no formal disciplinary action against these subordinates, there is no evidence that such actions were systematically encouraged. Likewise, a number of Allied ground formations refused quarter to Japanese troops, in response to a pattern of Japanese perfidy going back at least to the Guadalcanal campaign.

The most credible charge of a systematic pattern of war crimes by the Allies is in connection with the strategic bombing campaign against Japan. It has been argued that this constituted wanton destruction beyond the necessity of war and involved the deliberate targeting of civilians. Defenders of the strategic bombing campaign have replied that the bombardment of defended cities was not forbidden by the laws and customs of war of the time; that Axis "terror bombing" predated the Allied campaign; that the dispersal of Japanese industry made entire cities legitimate targets; and that other means of compelling the Japanese to capitulate, such as blockade, would have entailed even greater loss of life. The morality and legitimacy of the strategic bombing campaign continues to be hotly debated into the 21st century, suggesting how intractable the issue is. It is this author's opinion that the debate reflects one of the most awful aspects of war, namely, that it causes good men to feel compelled to do terrible things.

War Crimes Trials

Photograph of Tokyo war crimes trial
Wikipedia Commons

The Allies announced as early as 13 January 1942 that Axis war criminals would be punished after the war. The victorious powers convened war crimes tribunals in both the European and Pacific theaters to try Axis leaders and soldiers. The jurisdiction of these military tribunals depended on the nature and scope of the crimes alleged. Those accused of being responsible for general policies of a criminal nature (generally the highest government leaders) were designated as Class A defendants and were tried by international tribunals, either in Tokyo or Nuremberg. Those accused of local crimes were tried by military tribunals at the location where the alleged crimes took place. Twenty-eight leaders were charged as Class A defendants and 5,700 other Japanese as Class B or C war criminals. Of these, some 4,300 were convicted, with almost 1,000 sentenced to death and hundreds more sentenced to life imprisonment.

The war crimes trials were controversial from the start, since they appeared to some to be an exercise in “victor’s justice.” The tribunals consisted of officers of the aggrieved nations, which created an appearance of partiality. There were also numerous legal and procedural objections to the proceedings. In particular, few of those put on trial had broken any law of their own nations, which meant the trials violated national sovereignty. Trial for crimes against the peace and crimes against humanity appeared to violate the prohibition of ex post facto law.

However, the Nuremberg trials brought to light massive evidence of the awful nature of the Nazi regime in Germany. That three of the accused in the trial of major war criminals were nonetheless acquitted, and others sentenced to imprisonment for as little as ten years, suggests that the trials were not “kangaroo courts” but were an honest attempt at justice. Perhaps the Nuremberg proceedings are best regarded as an exercise in natural law. Murder is not a crime because the law makes it so; it is a crime because it shocks the conscience. The same could be said, millions of times over, of the acts of those convicted in Nuremberg.

The Tokyo war crimes trials were a sharp contrast with the Nuremberg proceedings. Whereas the Nuremberg convictions were supported by masses of documentary evidence, the Japanese destroyed most of their records at the time of their surrender. The Nuremberg prosecutors included in their ranks some of the most brilliant legal minds of their generation, who were careful to establish the individual responsibility of each defendant for the acts with which he was charged. The Tokyo chief prosecutor, a political appointee largely unqualified for the responsibility given him, showed up in court drunk on more than one occasion, and a case can be made that many of the major war criminals were convicted for the acts of subordinates, such as Tsuji Masanobu — or for the decisions of the Emperor.

Unlike Germany, which was being overrun at the time of her surrender, and whose surrender was truly unconditional, Japan was not occupied until some time after the cease-fire, and the surrender was not unconditional. The guarantees given by the Allies regarding the Emperor were an expediency without which the Japanese military might never have been persuaded to submit, but they also led to a situation in which the Tokyo war crimes trials were fatally flawed from the start. It was impossible to conduct a just and thorough examination of Japanese leaders as long as the Imperial Family was off-limits.

These criticisms of the Tokyo trials should not be mistaken for arguments that the Japanese were less guilty of war crimes than the Germans. There is clear and convincing evidence of a shocking pattern of atrocities by the Japanese military throughout the Pacific War, as well as during the Sino-Japanese War that preceded it. The concern here is with the carelessness with which guilt was assigned and punishment inflicted.

Another objection to both sets of war crimes trials was that, even if the punishments handed out were just, punishment was handed out exclusively to Axis defendants. It has been argued, for example, that Curtis LeMay should have stood trial for the fire bombing of Japanese cities. Politically, this was impossible, but it was equally impossible not to act against Axis leaders. The situation was further muddied by the argument that the Allies engaged in area bombing of cities and unrestricted submarine warfare in retaliation for similar practices by the Axis. When a legal or moral barrier was breached by the Axis in a way that appeared to give a military advantage, the Allies often adopted an "if that's how you want to play the game ..." attitude.

Perhaps the bottom line is this: The Axis began an unprovoked and brutal war of aggression, leading to untold horrors for a generation of the human race, against an Allied coalition that had clearly demonstrated a great reluctance to take up arms. That may be the ultimate best justification for the war crimes tribunals.

References

Drea (2009)

Gilbert (1989)
Kehn (2008)

Russell (1958)

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War Crimes

Japanese War Crimes

Allied war crimes

War Crimes Trials

Alleged war crimes

Alleged war criminals

Candles in the darkness