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Yamashita trial as a monument to our humanity

by Hiroaki Sato

In Yuha Park’s 2005 book “For a Reconciliation” between Korea and Japan, one observation caught my eye. Some Koreans condemn Japan as a “war-crime nation,” therefore the equivalent of an “ex-convict” who’s “eternally untrustworthy,” the Korean scholar says. That forestalls further discussion, she says.

If “war crimes” emerged in World War II as a legal conception, you must start with the U.S. atomic bombs and extensive carpet bombings, Park explains.

That Japan is beyond redemption because it is a “war-crime nation” also seems to be a common assumption among U.S. commentators. As regards the Yasukuni Shrine, for example.

My own education of “war crimes” may have started in 1974 as the horrendous, lopsided Vietnam War was finally dwindling and U.S. President Gerald Ford was preparing to go to Vladivostok for arms control with the Soviet Union in November, via a stop in Tokyo.

One day in The New York Times I spotted a letter to the editor with a photo showing a Japanese sword, scabbard and blade separated. Its caption read “Yamashita’s sword,” its heading “For U.S.-Japanese ‘Detente.’ “

“After the rather thoughtless manner in which Kissinger leaped over Japan to get to detente with Red China a couple of years ago — one way to re-establish a decent detente with Japan would be for the President to bring back Tomoyuki Yamashita’s samurai sword to his widow, who still lives not far from Tokyo,” the letter writer, Malcolm Rosholt, wrote.” “The sword was forwarded either by Douglas MacArthur or the army to the West Point museum, where it still remains on exhibit, a monument to our humanity.”

At the time I knew about Tomoyuki Yamashita only as part of a larger drama of the aftermath of Japan’s defeat in the Pacific War.

A dozen years later, I received a call from a New York law firm. One of its lawyers had just published a book on the Yamashita Trial in Manila, and wondered if I would estimate the cost of having it translated into Japanese. I simply gave an estimate of the cost by the word count, and that was that.

Since then I’ve regretted why I hadn’t tried a little harder. Had I at least read the book, I could have understood “war crimes” that much earlier.

So, prompted by the Korean equation of a “war-crime nation” with an “ex-convict” according to Yuha Park, I finally sought and bought what appeared to be the book in question. As it turned out, whatever I had remembered from around 1990 seemed all wrong.

The book I found, A. Frank Reel’s “The Case of General Yamashita,” was certainly written by one of the defense lawyers in Manila, but it seems to be the only one of its kind, and it was published in 1949.

Besides, a Japanese translation of it had appeared in 1952, the year of the San Francisco Peace Treaty.

But what an enlightening education Reel’s tract has turned out to be! What a rage for justice it shows!

The Military Commission in Manila had convicted Yamashita on his failure to exert “command responsibility” for every action of his troops, but Yamashita’s six lawyers had believed in his innocence and taken their case as far as the U.S. Supreme Court, against all odds.

The Supreme Court took on the case, “In re Yamashita,” but the case also lost. Yet the six men’s pursuit of justice and the two dissenting Supreme Court jurists, Frank Murphy and Wiley Rutledge, provide eloquent testimony on how “war crimes” could go awry.

It’s true — “War breeds atrocities,” as Justice Murphy observed. But once you bring in modern law, especially one cardinal rule in the U.S. Constitution, the Yamashita Trial was woefully deficient.

“The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished.”

The Manila Military Commission that tried Yamashita and ordered him to hang failed to “obey the dictates of the due process requirements of the Fifth Amendment,” Murphy noted, adding “it is of the utmost importance that the necessary punishment of those guilty of atrocities be as free as possible from the stigma of revenge and vindictiveness.”

In truth, Douglas MacArthur, Supreme Commander for Allied Powers, whose jurisdiction included the Manila Military Commission, did not attempt to cover his naked aim of revenge. He even pressed Yamashita’s verdict to coincide with the fourth anniversary of Pearl Harbor, on Dec. 7, 1945.

MacArthur’s palpable revenge motive was clear to many third-party observers. One such observer who attended the trial proceedings, named a Captain James A. Shackford, of North Carolina, wrote a verse that ends with “to the victors go the spoils of war.” That is also another verity.

For his part, Justice Rutledge invoked Lincoln’s second inaugural address (“With malice toward none, with charity for all”) to argue that “It is not too early — it is never too early — for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men — that is, of all men, whether citizens, aliens, alien enemies, or enemy belligerents.”

The war-crime category for Yamashita, “command responsibility,” was later codified in the Tokyo Trial as “negative criminality.”

This and the other “war crimes” in the Nuremberg Trial made Frank Reel observe: “The fallacy is that we have been trying to cover what is essentially a political act with a cloak of legalism,” and he foresaw the “lasting harm” of the outcomes of these military trials.

Since then Reel’s prediction has proved right, mainly by reverse example. Commanders on the victorious or powerful side have never been charged: the My Lai massacre, the Abu Ghraib torture, and Kandahar mass killings, to name a few.

When it comes to the loftier-sounding “war crimes” — “crimes against peace” (planning and waging wars of aggression) and the “crimes against humanity” (all kinds of human bodily harm), there have been a number of war criminals since World War II.

Yet in every instance, every one convicted has been the loser. All those on the victorious or powerful side have gone scot-free. In the past four decades alone, just think of U.S. Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama and British Prime Minister Tony Blair.

A frequent contributor to The Japan Times, Hiroaki Sato is a poet, translator and essayist who lives in New York City.