The Pacific War Online Encyclopedia

War Crimes

Some readers may find the material in this article distressing. Discretion is advised.

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 in time of war 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 reflected what Drea (2009) has described as a "sea change" in the conduct of the Japanese military. During the Boxer Rebellion and the Russo-Japanese War, the Japanese high command imposed iron discipline to ensure proper conduct by their troops, in an effort to demonstrate to Western observers that Japan was a civilized, modern nation deserving of a place among the great powers. In spite of a high degree of antagonism between the Russians and Japanese, the Japanese committed few atrocities in the 1905 war, and they took considerable pains to treat their prisoners of war correctly.

However, 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. At the time, this seemed to be an aberration.

The Japanese Army continued to maintain a high standard of conduct during the First World War, and even during the Nomonhan Incident of 1939 the conduct of Japanese troops was mostly correct. However, by that time the Japanese Army had shocked the West with its conduct in China, including the Rape of Nanking. This dramatic "moral collapse" (Weinberg 2005), taking place in a relatively short span of years, continues to be a subject of study and debate among historians.

Edgerton (1997) finds an explanation in the collision between the historical Japanese sense of cultural superiority and the obvious Western technological superiority manifest when Perry opened Japan. He theorizes that this produced a strong cognitive dissonance in the Japanese mind, driving the Japanese to prove their worthiness to join the ranks of the great powers through the fighting skill and correct conduct of their soldiers. When this failed to win the Japanese the respect they believed they deserved, and especially after the Western powers proved vulnerable against the initial onslaught of the European Axis, the Japanese sense of inferiority turned to contempt, driving a sharp increase in the brutality of the Japanese Army.

British observers during the Russo-Japanese War remarked on the way Japanese officers were instantly obeyed in spite of maintining a close social intimacy with their men. However, by the 1930s the service academies were systematically obliterating the social bond that had previously existed between officers and enlisted men. Officers were expected to treat their men with "calculated brutality" (Edgerton 1997), including frequent beatings, so that the soldiers would fear and hate them. The intent was to turn the men into vicious fighters who would vent their pent-up rage against the enemy. "Having been subjected to cruel and irrational punishments we were trained to act without thinking in response to orders" (Edgerton 1997). At the same time, Japanese fighting men were taught that surrender was unthinkable and that they should regard themselves as already being as good as dead. This led to a sense of fatalism that made it easier for the Japanese soldier to kill.

This hardening in attitude was reflected in the Imperial Rescript issued at the start of the Pacific War. The Imperial Rescripts issued for the Russo-Japanese War and the First World War admonished commanders to strictly observe international law. This admonishment was notably missing from the Imperial Rescript issued for the Pacific War.

The catalog of war crimes committed by the Japanese cannot be adequately covered in a single article, and the interested reader is referred to the list of links to specific incidents given below. However, some aspects of this pattern that were manifest during 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 construction of 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.

A number of war crimes were committed against captured Allied airmen under the pretext of the Enemy Airmen's Act of 13 August 1942. This was formulated and applied ex post facto to the Doolittle raiders, eight of whom had been captured by the Japanese. Sugiyama had three of the men executed, over the objections both of Tojo and the Emperor, but commuted the sentences of five others to life in prison in the Emperor's name. Allied airmen continued to be murdered under this regulation throughout the war.

Though uncommon, there were well-documented instances of Japanese troops eating the flesh of executed Allied airmen. One such incident occurred in Burma and was the responsibility of the sinister Tsuji Masanobu. Other incidents occurred in New Britain and at Chichi Jima. 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 as many as 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 1941 ordering that anyone destroying important natural resources in the Netherlands East Indies was to be "severely punished". A similar incident occurred at Blora, Java, following the demolition of the nearby Tjepu oil field. In this case only the male Europeans were killed, the women being repeatedly raped instead before being interned. The Allies eventually documented 24 similar incidents between December 1941 and April 1942.

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, such as Richard Hovey, 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 endeavor to secure information."

A particular notorious incident involved the MV Behar, sunk in February 1944 during 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 Naomasa. Sakonju was hanged, while the captain of Tone, who had protested the order before carrying it out, was given a relatively light sentence of seven years imprisonment. Other merchant ships whose crews were systematically slaughtered included Tjisalak and Jean Nicolet.

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. The most serious such incident occurred during the Battle of the Bismarck Sea. Although Allied senior commanders took no formal disciplinary action against the perpetrators, 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. In particular, 41 Division were called "the butchers" by the Japanese because of their reluctance to give quarter. Alexander (2009) claims that Lieutenant Colonel Harold Mangold, who commanded a battalion of 38 Division during the second Luzon campaign, ordered his men to refuse quarter on pain of court-martial until he was personally reprimanded by Krueger.

The slaughter of Japanese troops in the water in the Bismarck Sea illustrates the observation that atrocity begets atrocity. Earlier in the battle, the crew of one of the Allied aircraft shot down over the convoy took to their parachutes, only to be machine gunned by Japanese fighters. This was witnessed by several Allied air crew, and the story rapidly spread among the units participating in the battle.

Numerous first-person accounts of the war against Japan (e.g. Allen 1984, Bergerud 1996, Leckie 1962, Sledge 1981) report that Japanese troops mutilated Allied corpses, often by cutting off the corpse's penis and placing in the corpse's mouth. Allied soldiers responded in kind, by removing gold teeth from Japanese corpses or by taking Japanese skulls or other body parts as souvenirs. Chindit commanders noticed that Nigerian troops under their command were fond of decorating their entrenchments with Japanese heads. In a particularly notorious incident, Life magazine published a picture of a young woman whose Navy officer boyfriend had sent her the skull of a Japanese soldier. This provoked outrage in Japan and was exploited by the Japanese government for propaganda purposes. It also provoked outrage in the United States, and senior commanders, including Nimitz, demanded that local commanders enforce field regulations against mistreatment of enemy dead. However, enforcement remained spotty and penalties were rarely severe. The Navy officer who sent the Japanese skull to his girlfriend received no more than a letter of reprimand.

In a speech to the Diet on 18 December 1941, Tojo claimed that the Americans had tortured 10 Japanese to death and shot 38 others at Davao. However, Tojo himself began to doubt the truth of the allegations by 23 December, suspecting that they had been manufactured by jingoistic newspaper reporters.

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 campaign 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 and demonstrated that there was no prohibition on strategic bombing as a matter of customary international law; 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 because the alternatives all appear worse.

War Crimes Trials

Photograph of Tokyo war crimes trial
Wikimedia Commons

The Allies announced as early as 13 January 1942 that Axis war criminals would be punished after the war, a warning that was repeated by Roosevelt in August 1942. 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 military 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 4,403 were convicted, with 984 sentenced to death and 475 others sentenced to life imprisonment.

The war crimes trials were controversial from the start, since they appeared to some observers 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 have been compared unfavorably with the Nuremberg proceedings. Whereas the Nuremberg convictions were supported by numerous eyewitnesses and masses of documentary evidence, the Japanese had time to destroy most of their incriminating records after the Emperor's surrender broadcast and before the occupation of Japan. The greater distance of Tokyo from the western powers meant that it was more difficult to bring in western eyewitnesses, such as repatriated prisoners of war. As a result, the Far Eastern tribunals accepted affidavits which were difficult for the defendants to challenge and which would likely not have been accepted into evidence in a regular British or American criminal court. 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 has been characterized, perhaps unfairly, as a political appointee largely unqualified for the responsibility given him who showed up in court drunk on more than one occasion. Many of the major Japanese 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 arguably 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 seemed fatally flawed from the start. It was impossible to conduct a 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.

The mechanics of the war crimes trials did not begin to be worked out until early 1944, when victory was finally in sight. The Chinese, who in 1944 declared the Japanese "an evil race" (in Maga 2001), were especially anxious to carry out sweeping and extensive trials of thousands of suspects. The Western Allies rejected this approach in favor of a legal apparatus that emphasized justice rather than revenge. A crucial role was played by Sir William Webb, chief justice of Queensland, Australia, who investigated Japanese atrocities in the Southwest Pacific as the war was winding down. Webb was close to MacArthur and Herbert Pell, Roosevelt's representative on the United Nations Commission for the Investigation of War Crimes. Webb worried that the atrocities in Europe would overshadow those in the Far East, and wrote that war criminals "must not go free" (Maga 2001). The chief prosecutor was Joseph B. Keenan, director of the Criminal Division of the U.S. Justice Department. "Joe the Key" was an early New Dealer who had prosecuted such infamous gangsters as "Machine Gun" Kelly and had successfully lobbied for anti-racketeering legislation in Congress. Keenan was known for his courtroom theatrics and ample ego and was an admirer of MacArthur. Keenan developed a seventeen-part definition of what constituted a Class A war criminal, limiting the definition to acts after 18 September 1931, and calling for "fair play" and for the authority of the court to "be properly recognized and emphasized, particularly in dealings with the Japanese people". The most controversial point was #17, which explicitly stated that the Emperor was not to be placed on any list of war criminals.

The U.S. Army conducted military tribunals for Class B and C war criminals that were subject to much the same criticisms as the International Military Tribunal. Because the first of the Army trials actually preceded the trials of the Class A defendants, it attracted considerable attention at the time, and the issues it brought up and the legal strategies used by both prosecution and defense foreshadowed those of the International Military Tribunal. The defendant was Tsuchiya Tatsuo, a prison camp guard at Mitsushima who was known to the Allied prisoners as "Little Glass Eye." Tsuchiya was charged with eight specifications of torture and cruelty to prisoners of war. Tsuchiya's lawyers, led by John Dickinson, argued that Tsuchiya was an ordinary soldier, a "cog in the wheel" (Maga 2001) caught up in a militaristic culture over which he had no control and who should not answer for the sins of Japanese policy makers. Many Japanese commentators picked up this line, adding that the tribunals failed to give due allowance for major differences in culture; for example, Tsuchiya's physical abuse of prisoners allegedly reflected a culture of physical abuse within the Japanese Army itself.

However, the chief prosecutor in the case, Louis Geffen, emphasized the individual responsibility of Tsuchiya in violating clear and specific rights of prisoners of war. Geffen also took pains to ensure that the trial was not rushed and had the appearance of fairness, to the point of refraining from objecting to some defense tactics and arguments that he thought he might have successfully challenged. Dickinson successfully moved to have one of the trial judges removed on the grounds that he was a former prisoner of war, and got two of the charges dismissed for lack of evidence. Geffen responded by focusing his case on the torture and death of American prisoner Robert Gorden Teas, producing nine sworn affidavits by American witnesses that Teas had discovered that Tsuchiya had stolen the prisoners' Red Cross parcels, and Tsuchiya had responded by stripping Teas and leaving him in the camp courtyard in the middle of winter. Over the next five days, Tsuchiya gradually beat Teas to death, sometimes reviving him after he was beaten unconscious in order to beat him some more. The accounts shocked the court, but were challenged by Dickinson as hearsay and as the product of a conspiracy by prisoners to "get back" at their guards. One defense witness suggested that the prisoners conspired "just like Roosevelt conspired to get us in World War II", an argument that likely seriously backfired with the military judges. On 28 December 1945 Tsuchiya was found guilty and sentenced to life at hard labor.

The most controversial Army trials were the trials of Yamashita Tomoyuki and Homma Masaharu, who were tried not for any personal offense, but for failing to prevent atrocities by troops under their command. This doctrine of command responsibility established a new precedent that continues to be criticized today.

The U.S. Navy conducted military tribunals for Class B and C war criminals at Guam under the direction of Admiral John D. Murphy. Murphy was a former enlisted sailor who had risen through the ranks and obtained a law degree from George Washington University in 1929. A civil libertarian who would later oppose McCarthyism, he insisted that the Navy trials pay considerable attention to correct procedure and rules of evidence. The Navy tribunals were reluctant to accept hearsay evidence or affidavits and avoided going beyond settled law whenever possible. Thus, the most sensational of the Navy trials, the "Cannibal Trials" of Tachibana Yoshio and other Japanese officers accused of killing and eating Allied prisoners on Chichi Jima, were supported by careful forensic work and testimony that established individual guilt. The prosecution avoided the issue of command responsibility by presenting evidence of personal responsibility of accused Japanese officers for the murder of Allied prisoners,and the Navy arraigned the officers on straightforward charges of murder.

Outside of China, there was never as much support for the Far East tribunals as for the Nuremberg trials. The Holocaust and other crimes against humanity by the Nazis caught the public's attention in a way that the crimes against humanity in the Far East, such as the Rape of Nanking, never did. However, the trials received a surprising amount of support in Japan itself, where many Japanese viewed the trials as an exercise in leaving the old, militarist Japan behind to make a new Japan possible. The tribunal received over a thousand letters by Japanese nationals denouncing other Japanese as war criminals, and most were judged as genuine rather than as attempts to settle old scores between neighbors. Asahi Shumbun published an abridgement of Keenan's history of the International Military Tribunal, and Nippon Times editorialized on 16 September 1947 (Maga 2001):

Japanese observers, at first skeptical, have been convinced of the genuine character of allied justice. The eminently reasonable and fair though strict sentence [sic] passed for charges which were proved, have convinced us of the fairness and judicious objectivity of the trial procedure.

However, this view was hardly universal at the time, nor has it characterized the Japanese attitude in the decades since the trials. Keenan's warning that "if [the war crimes trials] are not held, the people in impatience and disgust, will have their own lynchings and blood purgings"(in Maga 2001) is not likely to be taken seriously by modern historians.

Another objection to both the European and Far East 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.