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Tuesday, Nov. 2, 2004
THE ZEIT GIST
Justice reaches dead-end
Ex-POW testimony sheds new light on America's concept of post-war justice as the notion of international law faces collapse,
In accusing 1,039 Japanese of war crimes at the Yokohama War Crimes Tribunals, 123 of whom were sentenced to death, U.S. officials apparently sought not to seek justice in a legal sense, but to establish the principle of ultimate accountability and set a benchmark for the punishment of future war criminals.
But that benchmark, and the evolution of international law since now seems in jeopardy as a result of U.S. policy toward the International Criminal Court -- a direct descendant of those first war crimes tribunals.
In sentencing war criminals to death, Gen. Douglas MacArthur, argued that "the roles of war, and military law resulting as an essential corollary therefrom, have always proved sufficiently flexible to accomplish justice within strict limits of morality."
However, new eye-witness testimony from a former POW suggests that "justice," in the legalistic sense was not served and that suspected war criminals may have been executed, in part based on false or unreliable evidence.
The very first trial at the Yokohama War Crimes Tribunal on Dec. 18, 1945, concerned Tatsuo Tsuchiya, a 28 former civilian guard at Mitsushima POW camp located in Nagano, from which came 11 convicted war criminals.
Among the three charges of which Tsuchiya was found guilty, most notable was that which blamed the former guard, nicknamed "Little Glass Eye" by inmates at the camp, for the beating to death of American POW Private Robert Gordon Teas.
But the trial was beset by problems.
Mark Gayn, a former Tokyo correspondent of The Chicago Sun who witnessed the trial wrote in his book "Japan Diary":
"As evidence was unfolded, doubt vanished that this mild looking ex-farmer was sadist, who delighted in inventing cruelties to be inflicted on the prisoners in the camp in which he was a guard."
However, Gayn added: "We all felt embarrassed watching the prosecutors handle the case.
"Their case was built on affidavits, some of which would not have passed the scrutiny of a police reporter, let alone a court of justice.
"The affidavits argued with each other. We snickered, but we felt uneasy and ashamed."
The new testimony from ex-Mitsushima POW Raymond Kirch supports Gayn's assertion that fair judicial process was far from being observed.
Kirch has revealed that Teas was not killed by violence, but by an improper medical procedure performed by Dutch Sumatran doctor Nicholas Van Slooten.
Kirch claimed he witnessed Teas die just after receiving an injection to ease beri beri-related swelling.
While there were affidavits stating that Teas had been severely beaten by Tsuchiya and others, none of them mention how he actually died, other than to say he was beaten and died some days later at a hospital.
While the true significance of the trial was that those accused of committing war crimes were being held accountable, " 'Proven beyond reasonable doubt' was not established among most of the verdicts," says Grant McL. McLachlan, a New Zealand documentary maker who has conducted a far-reaching investigated of the Yokohama War Crimes Trials and conducted the interview with Raymond Kirch.
Since the prosecutor didn't have to bring witnesses back from the United States, but could use these affidavits as authorized evidence, the defense was unable to cross-examine any key witnesses.
The defense argued that the admission of affidavits as evidence at the court, which had the power to impose death penalty, would breach the United States Constitution and the Articles of War.
However, the objections were overruled by the U.S. military commission, which argued that such protection could not be afforded to the accused as a former belligerent.
As a result, Tsuchiya was sentenced to life-imprisonment on the charge that the beatings had directly caused Teas' death. Four others named in the affidavits who were also found responsible for the death were sentenced to hang for that and other crimes.
Nonetheless, as Gayn remarked, "The purpose of the trials, I am told, is less to punish the guilty than to give the Japanese people a lesson in the futility of aggression."
Thus, it could, and has been argued, that MacArthur had more interest in establishing "rules of war" for future international society than in ensuring only the guilty were punished.
While acknowledging the legal flaws and unfair nature of the trial, "their true significance was far greater," argues Toshiaki Manabe, a Yokohama-based lawyer and co-author of "The Stars and Stripes At the Court," which explores War Crimes Tribunals in Japan.
Manabe believes that the most important aspect of the trials was not the rights and wrongs of so-called "victor's justice," but that it was an attempt to establish an international justice system by standing accused war criminals before an international court.
There is a direct line that can be drawn from the tribunals to the reinforcement of the Geneva Conventions in 1949.
And later, in 1993, the U.N. Security Council established the first international criminal tribunal since Nuremberg and Tokyo -- the International Criminal Tribunal for the former Yugoslavia. The International Criminal Tribunal for Rwanda followed it in 1994.
And in July 2002, when the International Criminal Court (ICC), a permanent war-crimes tribunal based in the Hague, was established according to an international treaty of 1998, the process begun in 1945 appeared to have reached its logical and desired conclusion.
However, by consistently opposing the ICC in order to exclude its own troops from accountability under a system of international law first established by its own government, the United States is threatening to unravel much, if not all of the progress of the last 60 years.
Military scandals such as Abu Ghraib and Guantanamo Bay have forced the U.S. to drop its requests at the U.N. for exemption for its nationals from prosecution at the ICC, but it has managed to secure bilateral immunity agreements with some 90 countries, ostensibly by threatening the withdrawal of the U.S. economic and military aid.
And last July, the U.S. House of Representatives passed a foreign aid bill that included the approval of an amendment prohibiting Economic Support fund assistance to any country that is a part of the ICC and has not yet signed the immunity agreement.
If it can be argued that MacArthur's bending of the rules of international law are justified because of the precedent they set and developments they facilitated, can the same be said of current U.S. actions that weaken accountability and reintroduce the notion of victor's justice with the greater good sacrificed for political expediency?
During the second presidential debate against John Kerry, President George W. Bush argued: "People love America. Sometimes they don't like the decisions made by America, but I don't think you want a president who tries to become popular and does the wrong thing. You don't want to join the International Criminal Court just because it's popular in certain capitals in Europe."
Bush's dig at European supporters of the International Criminal Court not only does a disservice to those whose efforts have contributed to the evolution of an international justice system. It also threatens the very notion of international justice, a concept first developed by the U.S. itself.
This concept was designed to discourage exactly the kind of global adventurism that the American government now finds itself accused of in those European capitals and elsewhere.
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