Court Record of the International Military Tribunal for the Far East: Defense Counsel Levin's Counterargument on the Number of Victims in Nanjing
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THE PRESIDENT: Captain Brooks.
MR. BROOKS : If the Tribunal please, I think that on this document, this reference to the reaction to poisonous serums tested, we would like to inquire into prosecution if this does not consist of a series of vaccinations of these people. It would go to the weight to place upon this report, which shows on page 2 that it was made years afterwards by an investigating committee requested by the prosecution. It shows here on the 17 November 1945, 1400, the first meeting was held, and if they didn't know the difference between vaccination and the statement as set out in here, I think it would be very material to this Court in considering the weight of this evidence, which is a summary of testimony which has already been given.
THE PRESIDENT: Mr. Levin.
MR. LEVIN: Mr. President, I believe the defense ought to have some protection against the use of a document of this character. There has been a great deal of evidence, practically uncontradicted in some respects, except as I indicated one time in Chambers that the defense would offer some testimony in relation to the Rape of Nanking and the atrocities which had been committed there. It seems to us that the Court has gone to great length to help the prosecution present its case in permitting the use of affidavits and permitting the use of summaries.
THE PRESIDENT: You must not criticise the Tribunal, Mr. Levin.
MR. LEVIN: I am not. Mr. President, I am not in the least intending to criticise the Tribunal in any way. I simply mean that the Court has permitted the prosecution to proceed in the manner which it has. What I am trying to say largely is this, that the prosecution, having the right to submit affidavits, having the right to submit summaries, and having the right to present the case in the manner in which the Tribunal has permitted it to present it, it ought not to have in these documents evidence of the character which is in this exhibit. The Court has indicated that at some time the evidence becomes cumulative, and if that situation develops the Court would act, and it seems to me that with the evidence that is already in that this evidence is cumulative, and the defense, in view of the fact that the affidavits are permitted to be read in, has no manner or way of protecting itself with reference to improper portions of those affidavits.
THE PRESIDENT: Well, now, you are entitled to be there only to object to a certain bit of evidence, and the evidence I take you to be objecting to is that referring to tests on Chinese apparently with poisonous materials. Subject to what my colleagues think, that appears to me to be a mere assertation unsupported by any evidence.
MR. LEVIN: In addition to that, Mr. President, I would like to call the attention of the Tribunal to page 4, the first line of paragraph -- of the last paragraph, which states, "The number of victims killed totaled 2,179,586."
THE PRESIDENT: That was corrected, Mr. Levin.
MR. LEVIN: Mr. Brooks calls my attention to the fact that in another portion of the affidavit is contained the statement that 300,000 were killed in Nanking, and as I understand it the total population of Nanking is only 200,000.
THE PRESIDENT: Well, you may have evidence of that, but you cannot get it in at this stage.
MR. LEVIN: No, I do not want to, Mr. President.
THE PRESIDENT: The Judges will be just as vigilant as the defense to see that evidence which is indefinite or vague, or sweeping assertions which are not supported by evidence, are rejected. You need no protection against the Judges.
MR. LEVIN: Mr. President, we are sure of that. We do not want to be captious in calling attention to minor errors that appear. However, we do feel that the prosecution does owe the Tribunal a duty, it owes a duty to us, and it owes a duty to the public. And it seems to me that where the evidence has been fully covered, that they ought to exercise some discretion and care in the presentation of matters of this kind.
THE PRESIDENT: Well, in the result the statement to which the defense objects, namely that there were tests with poisonous materials on Chinese, is rejected as evidence.
Yes, Mr. Sutton.
January 30, 2022
*1:Excerpts from Court Record of the International Military Tribunal for the Far East. 1946/08/29 (pp. 4,449-4,565), pp. 4,548-4,552 (National Diet Library Digital Collections frame Nr. 105-108)dl.ndl.go.jp
