Court Record of the International Military Tribunal for the Far East: Defense Attorney Blakeney's Motion, not Included in the Japanese Record of Proceedings
MAJOR BLAKENEY: I shall then continue, sir.
The victor nations have the power, as I think we can say they have the legal right, to impose upon the vanquished what terms they wish. The chief prosecutor has asked in a flight of oratory, which I cannot emulate, "Is it possible that these nations, the accused, have not the power to punish the authors of world-wide calamity?" It is possible, international law will agree, that these twenty-eight men in the dock might have been exiled by the victorious nations to some latter-day Saint Helena, they might have been imprisoned without trial, or they might have been shot out of hand. The power is there, the right existed. But, for reasons which commend themselves to the governments involved, the decision was taken not to proceed in any of these summary fashions, but to administer to them "stern justice." To that extent, there was a voluntary, conscious and deliberate derogation from the rights in law of the victor nations; to that extent they abandoned their absolute right of punishment of the conquered nation and its subjects.
It would be idle to attempt to defend this Indictment by the assertion that what might have been done may be done here, for the victor nations have chosen to proceed otherwise, and this Tribunal is limited to the exercise of the jurisdiction conferred upon it. That jurisdiction is defined by the requirement of stern justice. Since the decision has been taken to act through judicial proceedings, we are remitted to the rule and principles of law. We return again and again to the inescapable conclusion that these defendants must be charged with crimes or offenses legally recognized as such or must not be put upon their trial; we return to the inescapable conclusion that the charge as stated in counts 1 to 36 of the Indictment, Group One, "Crimes Against Peace," do not constitute charges of any offense known to or defined by any law.
Let us turn to the valiant attempt which has been made to convince the Tribunal that the quite uniform course of modern authority, since the peace of Westphalia declaring war to be a legal exercise of sovereignty, has reversed its course. It is said that the authorities from whom I have quoted to the Tribunal were speaking of a time prior to the creation of certain treaties, international acts and covenants which have had the effect of setting up a new current. The Tribunal is told that the effect of these various international agreements has been to outlaw war, to render the waging of war illegal, in short, to make of war a crime.
We are given the Hague Conventions, the Covenants of the League of Nations, the Geneva Protocol, the Pact of Paris, the Resolution of the Pan American Conference, the accumulated effect of which, we are told, is to make war a crime. That war is the ultimate crime against humanity, by humanity, in the rhetorical sense, was recognized long before the expression was so used at the Geneva Protocol of 1924. But, that there has been created a new crime in the legal sense, and in the sense of which even the sternest justice will permit of imposing a penalty for it, remains to be proved.
If the Pact of Paris, say, denouncing war, has made it criminal, what punishment has then been provided for the nation offending? We look, we see none. What penalty, in fact, has been imposed by the treaty powers when violations have occurred of this treaty which is alleged to have created law? There has been none. Quite plainly, as the conduct of the nations persuades us, there has been heretofore no body of international public opinion willing to regard the waging of war as a crime. If we may believe that the veto power means what it says, we are unable to detect even in the organization of the United Nations such a public opinion. We have the most authoritative possible statement given on this point. Manly O. Hudson, Judge of the Permanent Court of International Justice, and one of the universally respected living authorities on international law, has said in his international tribunals, I quote: "The time is hardly ripe for the extension of international law to include judicial processes for condemning and punishing sets either of states or of individuals." The date is 1944.
How shall this Tribunal find that public opinion among the victorious nations does exist to adjudge that waging of war of aggression has become on international crime, when it discovers among the nations accuser, among the nations represented on the Tribunal, one which within the period covered by the Indictment herein has itself conducted armed aggression in Asia and in Europe, has been adjudicated guilty and for its guilt has been expelled from that very League of Nations upon the covenant of which the prosecution now so relies? Shall we simply say that to the victor belongs the spoils? Or, shall we, without respect for person or for nation, but in the execution of a justice falling alike on all, require the existence of a law before we punish?
The waging of war has not been considered an international crime, has not been considered by international law to be a crime; and, however desirable a contrary state of affairs might be, it is not so today. We know, of course, as who does not, the prosecution's boast that they will make now law in this case. But the very nature of the attempt precludes the possibility of its fulfilment. Before e Tribunal, pledged to administer justice according to law, without fear, favor, or affection, before a Tribunal which has stated its own task to be the most careful ascertainment of the law applicable, the gentlemen of the prosecution may well find themselves exceedingly embarrassed to urge this declaration of an ex post facto crime. I certainly do not propose to wast this Tribunal's time by argument whether an ex post facto declaration of a crime accords with law, or with justice. It is submitted that the prosecution's boosts shall not be the Tribunal's judgment, that the portions of the Indictment founded on the alleged "Crimes against Peace" should be dismissed by the Tribunal as beyond its jurisdiction to entertain.
I pass to my next point, which is the allied point that war is the act of a nation, not of individuals. It is hardly necessary to do more than state the proposition. The entire body of international law assures that war is the act of and brings into being relationships between states; no treaty, no convention touching on the subject of war, refers to individuals. International law by definition is applicable among nations and excludes individuals from its operation. If war were a crime, (as we have just seen) it could be so I only by virtue of treaties making it so. Yet, these treaties bind only those bodies politic, the nations by whom they were entered into, and no men of flesh and blood. Of the past treaties, agreements, and conventions, which are now relied upon to define this new crime, none declare that the premier, the foreign minister, the chief of the general staff, of the guilty nation shall forfeit his liberty or his life. Such a declaration might have been made, as a political decision, for reasons of state; but it exceeds the jurisdiction of this Tribunal, charged with dispensing justice under its announced intention of proceeding according to law, to create such a new crime.
The bald proposition indeed, is that, as a matter of law, individuals may not be charged with responsibility for wars, not at all because of high position in the state but because existing law does not prohibit it and assess a penalty. For this reason, additionally, the Indictment, insofar as it relates to the new crime of waging war by individuals, should not be tried by the Tribunal. It is superfluous to add that all charges of conspiring to do what was not itself criminal must likewise fall.
As my next point, I wish to discuss quite briefly -- because the Tribunal has already heard some argument addressed to this point -- the proposition that killing in war is not murder. That killing in war is not murder follows from the fact that war is legal. This legalized killing -- justifiable homicide, technically, perhaps --- however repulsive, however abhorrent, has never been thought of as imposing criminal responsibility.
No academician, no writer of texts, not Grotius nor the League Covenant, no court administering municipal or public law, has ever breathed such a suggestion. Nor has it ever been asked whether such killings occur in a just or unjust war, in a legal or an illegal war, a war of defense or a war of aggression. Men have been tried, within recent memory, for responsibility for killing in war in violation of the laws and customs which have grown up to regulate the contest of war. But the trial and punishment of those men was no judicial novelty. Rather, it was in strict conformity to age-old principles of international jurisprudence and in accordance with long recognized and frequently codified rules and principles of procedure.
If the killing of Admiral Kidd by the bombing of Pearl Harbor is murder, we know the name of the very man whose hands loosed the atomic bomb on Hiroshima, we know the chief of staff who planned that act, we know the chief of the responsible state. Is murder on their consciences? We may well doubt it. We may well doubt it, and not because the event of the armed conflict has declared their cause just and their enemies unjust, but because the act is not murder. Show us the charge, produce the proof of the killing contrary to the laws and customs of war, name the man whose hand dealt the blow, produce the responsible superior who planned, ordered, permitted or acquiesced in this act, and you have brought a criminal to the bar of justice. But let us forego this attempt also, by the so-called "Murder" counts of the Indictment, to impose responsibility for them upon men innocent of any specific connection therewith.
My last point is that violations of the laws and customs of war are punishable thereunder. If I touch but briefly upon this point, it is from no doubt as to its validity but, rather, that I hope to avoid such involvement with collateral issues as might cause this great, basic, fundamental question to be obscured or lost sight of. It is in large measure self-evident that violations of the laws and customs of war, which are specifically charged in certain counts of the Indictment, and which, unlike the so-called "crimes" which have heretofore been under discussion, do charge specifically defined offenses under existing law. It is, as I say, self-evident that there is a forum appointed for the trial of these offenses. That forum is not here. Under the laws and customs of war offenders are subject to trial by military commissions of the belligerent offended against. The military commission in question is patently one to be designated and appointed by that belligerent. That rule is stated, for example, in the United States Field Manual for the Guidance of its armies, Field Manual No. 27-10, Rules of Land Warfare, Paragraph 356 of which is as follows:
"Right of Trial. No individual should be punished for an offense against the laws of war unless pursuant to a sentence imposed after trial and conviction by a military court or commission or some other tribunal of competent jurisdiction designated by the belligerent." That this Tribunal is not the military commission contemplated by the laws and customs of war is, I think, quite clear.
This Tribunal is sui generis. Whether it is military, as its title implies, or civil, as the character of the members and the judicial robes suggest, we are not concerned to decide. Whatever is its character, it is not that military commission. It is not the commission in the sense in which that term is familiar to international law. And it is, therefore, not the tribunal for the trial of the offenses now in question.
And now, Mr. President, I am done, with one last word: The Chief Prosecutor assumes to speak for America in urging upon this Tribunal the acceptance of this Indictment as drawn. Those of us American defense counsel who wear the uniform of the armed forces of our country, I think, may also have the right to speak for America. We speak for American, for Anglo-Saxon, for Anglo-American, for democratic views of Justice, of fair play. He speak for the proposition that observing legal forms, while ignoring the essence of legal principles, is the supreme atrocity against the law. It is to the commission of this atrocity that the invitation is extended by the Indictment herein. The responsibility before history of this Tribunal, and of us who play our several parts here, is tremendous; it is awe-inspiring. That responsibility goes far beyond the fate of these twenty-eight men here on trial. If, from this trial, a better world, which we all hope for, a more perfect system of law, are to emerge, the proceeding must be so conducted that no man shall be able to say that justice has been outraged. By a trial founded upon such a dubious jurisdiction as this, we may, indeed, prove anew the power of the victor over the vanquished; but we cannot hope to add luster to our repute for attachment to justice and law.
February 12, 2022
*1:Excerpts from Court Record of the International Military Tribunal for the Far East. 1946/05/14 (pp. 194-303), pp. 204-215 (National Diet Library Digital Collections frame Nr. 12-23)dl.ndl.go.jp
*2:Japanese Record of Proceedings of the International Military Tribunal for the Far East. No. 5 (1946/05/14), p. 2 (ditto, frame Nr. 2)dl.ndl.go.jp
