“Accused Hideki Tojo, on the counts of the indictment of which you have been convicted, the International Military Tribunal for the Far East sentences you to death by hanging.”
With those words on November 12, 1948, a judge of the High Court of Australia unwillingly passed a death sentence on the wartime leader of one of the major Axis powers.
As president of the International Military Tribunal for the Far East, Sir William Webb presided over one of the two multinational tribunals established to prosecute the Axis crimes of World War II (the other being the International Military Tribunal at Nuremberg).
No Australian jurist before or since has ever held such responsibility, yet his part and Australia’s key role in the prosecution of hundreds of accused Japanese war criminals throughout the Asia-Pacific are little remembered today.
Seventy years on, it’s worth returning to the controversies surrounding the program of trials to see if there’s anything we can learn.
Immunity for the emperor
Webb’s scruples about the death sentence did not come from sympathy for Tojo or the other six defendants also sentenced to hang.
Rather, it was the joint decision of the Allied Governments to grant Emperor Hirohito immunity in exchange for his cooperation.
“It would be a travesty of justice, seriously reflecting on the United Nations, to hang or shoot the common Japanese soldier or Korean guard while granting immunity to his sovereign perhaps even more guilty than he,” Webb had written in September 1945.
Having spent three years investigating war crimes in the Pacific, he was convinced that responsibility for Japanese atrocities needed to be pursued all the way to the very top.
The Australian Government came around to his view, but its British and American Allies did not. The Emperor was left in power, used as a buffer to soften Japan’s rough and rapid transition to democracy. As a consolation prize, perhaps, General Douglas Macarthur appointed Webb as president of the tribunal.
Webb out of his depth
Webb was a diligent and effective investigator, but he was out of his depth in Tokyo. Balancing the competing legal and political objectives of the cosmopolitan court would have required a subtle and confident judge, extremely knowledgeable in international law and able to deal effectively with the international bench and the Japanese defendants.
Webb was not such a man. New Zealand judge Erima Harvey Northcroft described him as “brusque to the point of rudeness. He does not control the court with dignity, he is pre-emptory and ungracious in his treatment of counsel and witnesses, and instead of giving shortly the legal justification which in most cases exists for his decisions, he leaves everyone in the court with the impression his rulings are dictated by petulance or impatience and an impression, which may easily develop in the future, of prejudice.”
Nuremberg was wrapped up and the death sentences carried out by the end of October 1946. Tokyo, afflicted with administrative troubles, translation difficulties, and the incompetent management of the prosecution case by lead prosecutor Joseph Keenan, limped on into late 1948.
Carrying on without the president
Webb’s authority with the court, already weak, suffered a fatal blow in early 1947 when the Australian Government, in a breathtakingly parochial decision, summoned him to home to sit on the High Court for the bank nationalisation case.
By the time he returned to Tokyo in December, he was president of the court in name only.
Three judges — Northcroft, Lord Patrick of the United Kingdom, and Edward Stuart McDougall of Canada — had decided to take matters into their own hands.
All three men had served in one world war, seen a second, and had become determined that there should not be a third.
They agreed they could best achieve this goal by ensuring that Japan’s wartime leaders were convicted.
They knew that the prosecution’s case was struggling, particularly following Tojo able handling of Keenan’s botched cross-examination. And they also knew that two of the other judges, Bert Roling of the Netherlands and Henri Barnard of France, had serious reservations about convicting men under laws which they believed the court was making up as it went along.
Northcroft, Patrick and McDougall succeeded in pulling together a solid but not overwhelming majority of seven judges out of 11.
Reading the judgement and the sentences took him eight days; the sentences were read on November 12.
Tojo accepted his fate with characteristic stoicism. Taking off the headphones through which he had heard a translator announce Webb’s sentence in Japanese, he stood up, smiled at Webb, nodded, and bowed very deeply.
Turning sharply, he walked out of the courtroom.
‘He has lost his belief in war’
Five of the judges wrote partial or full dissents of their own, although these were not read to the court and were only published later.
Most controversially, openly pro-Axis judge Radhabinod Pal of India wrote a massive and inflammatory dissent where he suggested that Japan had fought a justified war against western imperialism, implied that evidence of Japanese war crimes against Asian civilians had been exaggerated for propaganda purposes, compared the atomic bombings of Hiroshima and Nagasaki to the Holocaust, and argued that all of the defendants should have been acquitted of all of the charges.
In a short partial dissent, Webb agreed with the majority on their interpretation of the law but expressed reservations about the sentencing: “I do not suggest the Emperor should have been prosecuted. That is beyond my province. His immunity was, no doubt, decided upon in the best interests of all the Allied Powers. Justice requires me to take into consideration the Emperor’s immunity when determining the punishment of the accused found guilty: that is all.”
This mild statement still inflamed Macarthur, who believed Webb was cynically exploiting anti-Hirohito feeling to boost his popularity in Australia, and compelled the prosecution to issue a statement affirming that there had been no grounds to prosecute the Emperor.
In his final public statements before his execution on December 23, 1948, Tojo repeated his satisfaction that the Emperor had escaped prosecution, confirmed his faith in the people of Japan, and called for world peace.
He was now under the guidance of a Buddhist priest, Dr Hanayama, who was pleased with the progress his pupil was making.
“Since he embraced the Buddhist faith six months ago, he has lost his belief in war,” Dr Hanayama told the media in a press conference in early December.
“A devout belief in Buddhism, together with the knowledge of the suffering the war has caused the world’s peoples, has convinced him that there are other, better means of solving world’s problems.”
That, at least, is a good lesson.
Adam Wakeling is the author of The Last Fifty Miles: Australia and the End of the Great War and Stern Justice: Australia in the Pacific War Crimes Trials.
This article was published by ABC News on the 12th of November 2018.