The Tokyo Trial and War Crimes in Asia

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Foreword by Mei Xiaokan and Mei Xiao’ao

THE TOKYO
TRIAL AND
WAR CRIMES
IN ASIA
MEI JU-AO
The Tokyo Trial and War Crimes in Asia
 Mei Ju-ao

The Tokyo Trial and

War Crimes in Asia
Mei Ju-ao

Translated by Cao Yan, Zhan Jixu, Xu Tianlun

ISBN 978-981-10-7403-5    ISBN 978-981-10-7404-2 (eBook)

https://doi.org/10.1007/978-981-10-7404-2

The print edition is not for sale in China Mainland. Customers from China Mainland please
order the print book from: Shanghai Jiao Tong University Press.
ISBN of the China Mainland edition: 978-731-3150-80-6

Library of Congress Control Number: 2017964270

Based on a translation from the Chinese language edition:

东京审判亲历记 by Mei, Ju-ao
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An Old Preface to International Military
Tribunal for the Far East (I)

Dr. Mei Ju-ao passed away for years. My memory of him awoke when Mei
Xiao’ao, his son, came to me with his book, The International Military
Tribunal for the Far East (unfinished), and asked me to write a prologue
for it. I am pleased to do so both for the reading public and out of my own
interest. Although this book remains unfinished, it is still of great signifi-
cance because it introduces the establishment and development of the
principles concerning crimes of war after World War II. Implementation of
these principles throughout the Tokyo Trial further clarified the condem-
nation and punishment of aggressive wars. Like the Nuremberg Trial, the
Tokyo Trial not only prosecuted conventional war crimes that went against
the laws and customs of war as provided for in traditional international
law, but also defined crimes against peace and crimes against humanity,
and went further to elaborate in great detail the concept of “conspiracy”
in aggression. While the four chapters completed by Dr. Mei put more
emphasis on the facts and procedures of the Tokyo Trial, this book does
contain a general explanation in its Chap. 1 as of the legal basis for punish-
ing the Japanese Class-A war criminals. Of course, a general explanation
may not replace a penetrating legal analysis, but it can help the readers
perceive the starting point and the direction of the Tokyo Trial, especially
as one can take a reference to the text of the Tribunal’s final judgment.
This is why I say that it is still of great significance although unfinished.
Another aspect for which importance should be attached to Dr. Mei’s
book is that it reveals a large amount of information on the Tokyo Trial that
outsiders do not have access to, which includes the process of organizing the

v
vi AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR…

Tribunal and the coordinative relations among its various departments, the
details about the determination of the list of Class-A war criminals and their
arrest and interrogation, the seat arrangement of the bench and its internal
working system, the organization, duties and working procedures of the
prosecution and the defense, the participation of American defence counsels
and the significance thereof, and so forth. It is a big pity, however, that the
final stage of the Trial, that is, the process of convicting and sentencing the
defendants, especially the war criminals responsible for the invasion of
China, is not reflected in these four chapters. Dr. Mei may have planned to
cover this part in his subsequent chapters, which would no doubt be a fasci-
nating story. At the time of the Trial, the KMT government lacked correct
comprehension and estimation. They thought since the fact of Japan’s inva-
sion of China was undisputable, the Trial must be no more than a formality,
with the war criminals punished accordingly, without the victim countries
having to provide much evidence. This being a misunderstanding already, to
their greater surprise, the United States sent a troop of lawyers to defend the
accused, in addition to the fact that seven of the eleven judges came from
common law countries, which caused imbalance between the prosecution
and the defence in favour of the accused. Although the Tokyo Charter stip-
ulated that “The Tribunal shall not be bound by technical rules of evi-
dence”, the Tribunal basically adopted the common law procedural rules.
Pressured by this situation, China had to on one hand object to the mechan-
ical application of highly technical rules of evidence, and on the other hand
to race against time, searching for evidence in the greatest possibility, includ-
ing relevant telegrams archived in Japan’s Ministry of War. These evidences
were presented at the final stage of counter-examination of the defendants
and their witnesses, so as to further substantiate the proof of their crimes in
China. It paid off finally. All the major war criminals responsible for the war
of aggression against China, such as Kenji Doihara, Seishiro Itagaki, Iwane
Matsui, Akira Muto and Koki Hirota, were all duly convicted and sentenced
to death, with their crimes made well known to the world.
As to its practical meaning, China has adopted an opening-up policy
since the third plenary session of the Eleventh Central Committee of the
Communist Party of China, and the number of foreign-related legal cases
have increased dramatically, most of which are taking place abroad. “To
know both yourself and your enemy”, we need to learn more about litiga-
tion procedures of other countries, especially those of common law coun-
tries, for which we are short of materials at present. In Chap. 4 of this
book, Dr. Mei elaborated on the trial procedures under the common law
 AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR… vii

system and their applications in practice. Despite any differences between

the Tokyo Trial as an international criminal trial and the foreign-related
cases we are handling, mostly civil and commercial ones before domestic
courts in foreign countries, many procedural rules, and rules of evidence in
particular, are equally applicable for the trials in those domestic courts,
whether criminal or civil and commercial in nature. Dr. Mei’s book will not
only enlighten our research on procedural law in general, but has provided
urgently-needed references for dealing with foreign-related cases today.
Dr. Mei and I met in Chongqing during the anti-Japanese war. In early
1946, I visited the United States and Britain, conducting a field survey on
their judicial systems and practices. When I heard that Dr. Mei would act
as a judge in the Tokyo Tribunal, I was very happy about this excellent
choice. In early 1947, I was invited to join the Chinese prosecution team
in Tokyo. While working in different positions, both of us went through
the tortuous process of the Tokyo Trial. It has been 13 years since Dr. Mei
passed away. And other Chinese who worked for the Trial are now scat-
tered in various places, except for Professors E Lvgong and Wu Xueyi who
have also passed away. Mr. Xiang Zhejun, then Chinese prosecutor, is 95
years old and now confined to bed. Mr. Liu Zijian teaches at Princeton
University, Mr. Gui Gongchuo at Taiwan University, and Messrs. Qiu
Shaoheng, Yang Shoulin, Gao Wenbin, Zhou Xiqing, and Zhang Peide at
different universities in Beijing or Shanghai, for years and years as hard-­
working as they were in the past. Part of Mr. Qiu’s job relates to China’s
legal system. Mei Xiao’ao’s visit has reminded me of the events over 40
years ago, which are so vivid in my mind as if they had happened yesterday.
To take the opportunity of writing this prologue, I express my sincere
hope that these old colleagues of mine stay healthy, and continue to con-
tribute to China’s prosperity, and to the world peace and human progress
till our last breath.
How I wish we could see each other again, recollect the past together
and supplement this unfinished writing for Dr. Mei!

August 1986 Ni Zhengyu

[Ni Zhengyu (1906–2003), joined the Tokyo Trial in 1946–1948 and

prosecuted Kenji Doihara, Seishiro Itagaki, Iwane Matsui and other Class-A
Japanese war criminals. He was appointed as an associate fellow with the
Institut de Droit International in 1991. He passed away in 2003 at the age
of 97.]
An Old Preface to International Military
Tribunal for the Far East (II)

Dr. Mei Ju-ao, my dear friend, has passed away for more than ten years.
Now, his posthumous work International Military Tribunal for the Far
East is published and made known to all, which is a blessing for the legal
circle in China.
Dr. Mei dedicated his whole life to the law. He studied law in early years
and, at the age of twenty-four, earned his J.D. from the University of
Chicago. After returning to China, he engaged in legal education and
took part in legislative work. In 1946, as the Chinese judge, he partici-
pated in the trial of major Japanese war criminals in the International
Military Tribunal for the Far East in Tokyo, which lasted for three years.
On the eve of the founding of new China, the KMT government appointed
him as Minister of Justice, but he resolutely refused to assume office, and
took a personal risk to return to Beijing from Hong Kong. After that, he
served as a legal adviser to the Ministry of Foreign Affairs until his death.
During this period, he attended many international conferences as an
expert in law and diplomacy. Dr. Mei made a great deal of contributions
to law in his life, while his work in the International Military Tribunal for
the Far East constituted one of the most important ones.
The trial of war criminals, as pointed out by Dr. Mei, “is an important
event in international life after the Second World War and a pioneering
undertaking in human history.” Learning a lesson from the failed attempt
after World War I and in order to succeed this time, the major allies during
World War II repeatedly affirmed the principle of punishing war criminals
in several agreements. Thus, two international military tribunals were set
up after the war, in Nuremberg, Europe and Tokyo, the Far East, for the

ix
x AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR…

trial of war criminals. The two tribunals successfully completed their tasks
in about one year and over two years respectively, which was a great
victory.
From the perspective of international law, war crimes and war criminals
are new concepts established through the Nuremberg and Tokyo trials.
Their establishment demonstrates a new development of international law,
especially the law of war. For a long time, there has been a distinction
between just wars and unjust wars in international law, while in modern
times this distinction is expressed as the difference between wars of aggres-
sion and wars against aggression. Although, in the strict sense, rules of
international law concerning such distinction have not yet been well
formed, condemning wars of aggression has long become part of the legal
consciousness of mankind and part of the new content of international
law. The punishment of war crimes and war criminals is derived from the
principle of differentiating wars of aggression and wars against aggression
and the principle of condemning wars of aggression, which, in turn, pro-
motes the development of such principles so that their status in interna-
tional law has been confirmed. As such, the two trials of war criminals
following World War II, i.e., the trials in Nuremberg and Tokyo, marks
indelible achievements in the history of development of international law.
It is very meaningful for Dr. Mei to write down his personal experience
of participation in the trial of war criminals in the International Military
Tribunal for the Far East. He started to write this book in 1962.
Unfortunately, once the “Cultural Revolution” broke out, his writing plan
was brutally interrupted. Before his death in 1973, he no longer had the
chance to continue writing. Therefore, this book represents an unfinished
draft with only four chapters. However, despite being unfinished, the four
chapters have discussed many important issues such as the establishment
of the Tribunal and its jurisdiction, the Charter and organization of the
Tribunal, the arrest and prosecution of major Japanese war criminals, the
trial procedures of the Tribunal, and so forth. This book is rich in materials
and deep in analysis. It is a valuable book and can serve as an important
reference book for the study of international law and international politics.
Books about the International Military Tribunal for the Far East and the
trials of war criminals which bear as great significance as this one are rare
even in the world.
As a jurist, it was a glorious and arduous task for Dr. Mei to participate
in the trial of international war criminals. With great efforts and after over-
coming tremendous difficulties—lack of attention and support from the
 AN OLD PREFACE TO INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR... xi

KMT government, delay and obstruction by the international reactionary

forces, etc.—he finally succeeded in making the International Military
Tribunal for the Far East pass a judgment against the major Japanese war
criminals that was basically consistent with the requirements of justice.
This was very much commendable.
Dr. Mei Ju-ao and I became friends after 1949. Just a few days after he
returned to Beijing, we attended together the inaugural meeting of the
Chinese People’s Institute of Foreign Affairs. At that meeting, Premier
Zhou Enlai praised his work and pointed out that “he has done a great
thing for the people and won honour for the country”, which was a best
appraisal of one important work Dr. Mei had undertaken in his life.

May 25, 1986 Wang Tieya

[Wang Tieya (1913–2003), outstanding jurist of international law in

modern China, professor at Peking University, and at Beijing Institute of
Politics and Law. He also served as director of the Institute of International
Law at Peking University. In 1987, he was elected Academician of the
Academy of International Law. He passed away in Beijing on January 12,
2003 at the age of 90.]
 In Memory of Our Father (Foreword)

Thanks to the efforts the Tokyo Trial Research Center and Shanghai Jiao
Tong University Press, My Personal Experience at the Tokyo Trial is to be
published, which is of great significance not only to our family but also to
the country. It will undoubtedly promote an in-depth study of the Tokyo
Trial, while expressing our lasting memory of our beloved father Mr. Mei
Ju-ao.

I
Our late father Mei Ju-ao, Ya Xuan (courtesy name), was born on
November 7, 1904 in Zhuguqiao Mei Village in Nanchang, Jiangxi
Province. Compared with provinces like Hunan, Guangzhou, Jiangsu and
Zhejiang, Jiang accepted new things slowly. However, our grandfather, a
clear-minded, knowledgeable and enlightened gentry, decided to send his
eldest son, our father, to the Exemplary Primary School of Jiangxi
Province, a school of the modern type which was rarely seen and not
highly praised then and there. Under firm support of our grandfather, our
father, who was only 12 years old, was admitted to Tsinghua School in
Beijing in 1916. With no connections, being far away from home and even
unable to speak the official language (Mandarin) well, the difficulties he
encountered in studying at Tsinghua were really not small. Students had
to strictly follow a semi military timetable and to take an active part in
western style physical exercises. No subject could be treated carelessly.
Otherwise, one would fail to go up to the next grade or run the risk of
being expelled from school. Many foreign teachers taught in English and

xiii
xiv IN MEMORY OF OUR FATHER (FOREWORD)

most of the students had a good command of English. But our father
knew little of the language, which made it almost impossible for him to
understand the lectures. What should he do? He was determined to learn
from scratch and catch up with others.
Then, every day at the break of dawn, there would be two young stu-
dents by the lotus pond on Tsinghua campus. Sometimes they mumbled;
sometimes they asked and answered questions to each other; sometimes
they recited texts individually. Gradually, they became more fluent, and
their exercises became more sophisticated. That was our father and our
granduncle, Mei Yangchun, studying English together. Mei Yangchun was
only four years older than our father and was admitted to Tsinghua School
from Jiangxi Province in the same year. Working day and night, their
English improved rapidly, which helped them to make progress in other
subjects. During the eight years, their teachers and schoolmates looked at
them with completely new eyes because of their excellent academic
records. Later on, Mei Yangchun became a famous engineer, presiding
over the design and construction of important bridges such as Nanjing
Yangtze River Bridge.
Our father’s vision was increasingly open and he developed wider inter-
ests in his advanced years at Tsinghua School. He served as chief editor of
the Tsinghua School Magazine, and organized a progressive group named
“Chao Tao” together with some other students including Shi Huang, Ji
Chaoding, Xu Yongying, who were early members of the Communist
Party of China. Shi Huang died young as a martyr. Ji Chaoding and Xu
Yongying engaged in revolutionary work ever since and served as impor-
tant leaders in the 1950s and 1960s.
In 1924, our father went to study in the United States. He studied at
Stanford University and University of Chicago Law School, where he
received his J.D. degree at the end of 1928. Living abroad, he had always
been concerned about the destiny of his country. In response to the call
for the Northern Expedition to “overthrow the governance of the
Northern warlords” by the National Revolutionary Army, he joined Shi
Huang, Ji Chaoding, Xu Yongying and some other Chinese students in
the United States in initiating the Research Institute of Dr. Sun Yat-sen’s
Thoughts, to actively promote revolutionary ideas among Chinese stu-
dents studying there and beyond.
In 1929, after visiting European cities including Paris, Berlin, London
and Moscow, he returned to China, following an absence of nearly 5 years.
 IN MEMORY OF OUR FATHER (FOREWORD) xv

II
In the 16 years from his graduation to assuming the position of judge in
the international court, he taught courses in civil law, criminal law, com-
mon law, international law and politics at Shanxi University, Nankai
University and Wuhan University successively. He also served as a part-­
time professor at Fudan University, Central School of Politics, and Judge
Training Institute of the Ministry of Justice. From 1934 onwards, he
became a member of the Legislative Council of the KMT government,
participated in its legislative work and served as acting chairman of its for-
eign affairs committee. At the same time, he worked as deputy director of
Sun Yat-sen Institute for the Advancement of Culture and Education and
chief editor of Collection of Current Affairs (a semimonthly journal), writ-
ing, translating and editing a significant volume of articles on law, foreign
affairs and international politics.
His writings in this period involved common law, civil law, Chinese and
western legal thoughts, and China’s constitution and criminal law, for
example, A Research on the Anglo-Saxon System of Law, The Napoleonic
Code and Its Influence, The History and Organization of Soviet
Revolutionary Courts, The History, Schools and Trends of Modern Law, The
Rule of Law in China’s Old Legal System, Criticism of the Constitutional
Guarantee Section of the Draft Constitution, and Comments on the
Amendment to the Criminal Code. A wide horizon, great variety of topics,
emphasis on both theory and practice, and rich research findings, these
could characterize his academic career at that time. His long-standing lec-
turing, investigation, reading and writing laid a solid foundation for his
legal theory and practice, which prepared him for his position as an inter-
national court judge in Tokyo.
Based on his perspective as a scholar of law, he had pointed out that
under a political system of KMT’s “one-party dictatorship”, “the party is
above all else. Each government act is based on the party’s principles and
assumes responsibility solely for the party. It does not make a contract with
its people and has no obligations to the people. In other words, the party
only has rights over the people, not obligations.” (Political Tutelage and
Provisional Constitution) As to the fact that the law was used as a tool for
the powerful and the rule of law could not be implemented, he prompted
a sharp question, “What had destroyed people’s liberty and trampled on
people’s rights? The law or the extralegal forces of government, the
xvi IN MEMORY OF OUR FATHER (FOREWORD)

­ ilitary and violence?” (Comments on the Revised Initial Draft of the

m
Constitution)
In addition, he was much critical of the legal education of the time,
perhaps out of his observations from teaching. Legal science and law
should be seriously treated, “however, law in China has become the most
shallow and boring subject”, and increasingly the teaching of law was
reduced to “fiddling around”. The teacher taught for money, the students
learned for a diploma, therefore “the society often regards law as a tool for
making a living or playing tricks, not as an academic subject or science.
The reasons why China’s rule of law cannot be achieved and the cause of
law is despised may vary, but the corruption in legal education is one of
the leading ones.” (A Discussion on the Textbooks and References for
Common Law Courses)
The above examples are but the tip of the iceberg of his ideas on the
science of law, which may still have an enlightening significance today.
(For the quoted articles, please refer to A Collection of Mei Ju-ao’s Essays
on Law, China University of Political Science and Law Press, 2007.)
In our father’s time, land was shattered and devastated, and people
lived in griefs. As a man of letters, when he thought of his parents, families
and friends being displaced by the Japanese invasion, Chinese troops fight-
ing in a bloody war, his fellow countrymen struggling under Japan’s occu-
pation, whilst some government officials profiteering from our nation’s
calamity, he was gloomy like the fog surrounding the wartime capital
Chongqing (a mountain city known for its thick fog). On the other hand,
he was impressed by Mr. Ma Yinchu’s brilliant analysis of China’s wartime
economy and the insightful comments published by Xinhua Daily and Ta
Kung Pao. However grim the reality was, our father’s ideals and his faith
in justice and fairness never faded. All he needed was an opportunity.

III
Together with the peace-loving people all over the world, the Chinese
people have finally triumphed in the anti-fascist war through extremely
severe struggles and at very high cost. After the war, the international
community set up military tribunals in Nuremberg, Germany and Tokyo,
Japan, where those major responsible persons of Germany and Japan were
tried respectively. In February 1946, the GHQ appointed nine judges
(later revised to eleven) of the International Military Tribunal for the Far
East (the “Tokyo Trial”) on the nomination of the Allied Powers. As
 IN MEMORY OF OUR FATHER (FOREWORD) xvii

r­ ecommended by the people concerned, our father was appointed to the

solemn trial seat on behalf of China.
From March 1946 to the end of 1948, regarding the achievements and
life of our father as a judge of the Tokyo Trial, the anecdotes mostly circu-
lated include “a sword given by compatriots as a present”, “a dispute over
seating arrangements”, “insistence on the death penalty”, “making an oath
by the sea”, and so forth. In the second chapter of The International
Military Tribunal for the Far East (unfinished) enclosed in this book, our
father presented in greater detail the dispute over seating arrangements
prior to the trial and revealed its importance for the maintenance of national
interests and dignity. The clue to the heated debate on measurement of
penalty could be seen in The Tokyo Trial Correspondence, which was firstly
made known in The Tokyo Trial Manuscripts of Mei Ru’ao—“after a long
discussion, a heated argument … and the complex and odd process, it is
hard to explain all in just a few words. Besides, it is also improper for me to
make any disclosure here”. It is a great pity that our father failed to com-
plete the writing of The International Military Tribunal for the Far East
because of the “Cultural Revolution”. As a result, later generations will not
be able to know the details of the discussion on the measurement of pen-
alty, which were sworn confidential by the judges at that time.
The diaries of more than fifty days were also included in this book,
which started from our father’s setting out to Tokyo to the end of the first
few days of the court session. He had the habit of keeping a diary. In the
end of the diary, he wrote a line—“from (May 14, 1946), to see in another
notebook”, which other notebook vanished without a trace during the
“Cultural Revolution”. From the short remainder of his diary, we can also
be affected by his feelings then and there.
Having received the systematic legal training, he made a clear distinc-
tion between the function of the judges and that of the prosecutors under
the common law system. He was familiar with the judicial principles such
as presumed innocence, equality between the defense and the prosecution,
neutrality of the judges, benefit of doubt for the defendants, etc. Seeing
the Chinese prosecutor Hsiang Che-chun collecting evidence and drafting
the indictment day and night, he could not even give him a hand.
Moreover, he also had to avoid arousing any suspicion and explain to his
fellow countrymen the relationship between a judge and a prosecutor,
which made all sorts of feelings well up in his mind.
In fact, the Tokyo Trial was both a legal occasion and a political and
diplomatic occasion. Naturally, it cannot be equated with an ordinary
xviii IN MEMORY OF OUR FATHER (FOREWORD)

court. The interests of different countries varied as the world pattern

changed, which would definitely affect the Tokyo Trial. At the same time,
there were disputes such as the one between “substantive justice” and
“procedural justice”. Whether it was the problem of “bias of the judge” or
the argument on “abolition of death penalty”, the general principles laid
out in the textbook and some of the views in the academic discussions
should not be used as criteria for appraising the Tokyo Trial, a particular
one under special circumstances.
While working on the upholding of justice in Tokyo, our father never
stopped observing and reflecting on the Japanese society, neither did he
stop worrying about and blessing the destiny of his motherland. He was
keenly aware that the post-war Japanese economy was not as bad as it had
been propagated, that is, they might have “made a poor mouth”. In terms
of national mental outlook and health, Japanese people were stronger than
Chinese people. He wrote in his diary: “I wonder why the General
Headquarters of Douglas MacArthur was so considerate of Japanese peo-
ple for food panic, and why they made meticulous plans for them. Such a
defeated country should really be regarded as ‘God’s favoured one’. As
compared to my victorious country in great difficulty and misery, I cannot
but sigh for our inferiority”. (May 2, 1946) “However, we should be vigi-
lant while being lenient … What I am most concerned about is whether
his (MacArthur’s) policy is detrimental to the national interests or hinder-
ing the development of my country—this problem has been hovering in
my mind all day today.” (April 12, 1946)
Although our father received Western education, affection for his coun-
try and homeland as a traditional Chinese intellectual were deeply rooted in
his mind. “Those who are in foreign countries feel most painful to their own
country’s failure to live up to their expectations.” (April 9, 1946) “‘There is
no better way to stop evil speaking than self-cultivation’, China has to win
credit for its people.” (April 26, 1946) “All the judges sent by countries are
experienced and prestigious, so I have to work extremely conscientiously
and sincerely, never be sloppy.” (April 10, 1946) and “I shall be vigilant! I
shall be solemn! For the opportunity I can sit at the bench today to punish
these culprits was built on the flesh and blood of millions and millions of my
compatriots.” (May 3, 1946) Taking an overview of our father’s diary, you
can find that “to win credit for” and “to be solemn” are the recurring
words. In his telegram to the Minister of Foreign Affairs on 24 April 1948,
he wrote: “It is my duty to strive with all my might to win the victory of this
unprecedented international war of law and justice.” Our father’s sense of
 IN MEMORY OF OUR FATHER (FOREWORD) xix

mission and his vision of the overall situation stood vividly revealed on the
paper. Therefore, it is obvious to see that our father contributed heavily to
the more or less satisfactory results achieved in the Tokyo Trial.

IV
At the time when the work of the Tokyo Trial came to an end, the regime
of China was in the process of being changed. Our father refused to
assume the position of “State Councilor and Minister of Justice”, and
refused to go to Taiwan for a living. Passing through Hong Kong, he
arrived in Beijing to serve as an adviser to the Ministry of Foreign Affairs
of the People’s Republic of China, with a commission document signed by
Zhou Enlai, premier and then foreign minister of PRC.
At the beginning of returning to the mainland, our father lived in peace
with liberal wages and benefits, and was highly esteemed in professional
work. On the one hand, he was very joyful, humming Beijing opera in the
spacious courtyard and sketching cartoons on the frosting windows. He
taught his daughter singing nursery rhymes in his hometown dialect, and
bought toy swords for his son. On the other hand, he could not help but
be nervous, as it was unavoidable to face political campaigns one after
another as well as to report one’s ideology, transform the world view and
learn Russian. Luckily though, the Ministry of Foreign Affairs was a bit
different from other government organs or institutions after all. The “local
climate” there was still somewhat pleasant as it was directly led by Zhou
Enlai, Chen Yi and other senior leaders, with most colleagues having
higher moral qualities. Even against the backdrop of the faculty adjust-
ment with sociology and political science being abolished and the “overall
Soviet-Unionization” of law, the senior experts of the Ministry of Foreign
Affairs were still able to carry out researches on certain issues in interna-
tional law and international politics, and could give consideration to aca-
demic theories while serving the immediate need of reality. By the time
when the “Cultural Revolution” approached, Zhou Gengsheng, Liu
Zerong and other seniors had published academic treaties, with our father’s
International Military Tribunal For The Far East completed in half, and
New Concept of War Crimes, On Tani Hisao, Matsui Iwane and the
Nanking Massacre and some other papers issued. Despite the unfair treat-
ment in the anti-rightist movement from 1957 to 1958, our father stayed
patriotic as always, making serious and conscientious self-­examination, and
in the meantime having research works coming out constantly.
xx IN MEMORY OF OUR FATHER (FOREWORD)

However, when the “Cultural Revolution” suddenly broke out, the

Ministry of Foreign Affairs could not be spared and the relatively pleasant
“local climate” no longer existed. Our father was labeled as “reactionary
academic authority” so that the materials accumulated for writing his book
was all confiscated, including notes, cards, clippings, and diaries, never to
know their whereabouts afterwards. The writing of International Military
Tribunal for the Far East was impossible to continue. In addition, apart
from labor reform under surveillance, he had to spend a lot of time and
energy in writing those “investigation materials” and “self-criticizing
reports”. His health deteriorated sharply as the shock of the news came in
continuous crowds—one old friend committed suicide, another former
colleague was beaten to death, and so forth. Sadly, he did not make it to
see the end of the “Cultural Revolution”, but passed away on April 23,
1973, at the age of only 68.
Like many intellectuals who take responsibilities for society at large, our
father had not stopped thinking and struggling despite his own awkward
position in the last years of his life. For some who took the name of “revo-
lutionary rebellion” to hurt the public interest and exerted dirty tricks to
damage the national reputation, such as setting fire to the British Office of
the Chargé d’Affaires and seizing powers of the ministry authority, he
resolutely submitted a written statement to a higher authority regardless
of his personal safety, and suggested inhibiting, investigating and not
trusting those whose greedy desire for power expanded endlessly. In
response to the charges such as “reactionary academic authority”, “oppos-
ing Sino-Japanese friendship”, “beautifying US-Japanese reactionaries”
and “hoping for restoration of the old regime”, he cautiously defended
himself by saying “I am nothing but a broken outdated little dictionary”,
“I have no special skills, not even a decent work written…”, “As is known
to all, I was the most earnest one to reveal the ambitious collusion of the
US and Japan to resurrect militarism” and “I was a principal offender
wanted by the Kuomintang government. To tell a joke, should the resto-
ration of the old regime take place, I am afraid that I would be killed by
them earlier than you young comrades!”
Today, of all our father’s remarks full of significance, the one most fre-
quently quoted was from the paper On Tani Hisao, Matsui Iwane and the
Nanking Massacre: “I am not a revanchist. Neither do I intend to ascribe
the debt of blood owed to us by the Japanese imperialists to the Japanese
people. I believe, however, that to forget the suffering of the past is to be
vulnerable to tragedy in the future.” But who can think of it that it was
 IN MEMORY OF OUR FATHER (FOREWORD) xxi

that sentence “to forget the suffering of the past is to be vulnerable to

tragedy in the future” that had incurred the accusation of “slandering our
party’s forgetfulness”. In fact, a few years before that, some of his argu-
ments that resulted in unfair treatment were equally thought-provoking:
“Some problems shall be ascribed to the system rather than to certain
people. For instance, Liu Qingshan grafted dozens of billions (old denom-
ination), which would have been impossible even in the KMT days. So we
should initiate reform on the institutional level.” “We are facing serious
problems of craving greatness and success, keeping subjectivism and doing
things beyond our means in order to be impressive (in economic construc-
tion).” “It is dogmatism to worship and fawn on the Soviet Union as deity
and to follow the words of the Soviet experts as a golden rule.”
As an ancient poem describes, “The sound lingers when the vermilion
string is flicked, as it comes from a lonely heart in the past.”
Our beloved father has left us for forty years. While the things he left
behind still look fresh, the trees on his graveyard have already grown tall.
What we are gratified is that the rule of law in our motherland has begun
to take shape, and the in-depth study of the Tokyo Trial has been carried
out step by step. We are in the hope that the great regret at our father’s
suspended writing and lost information could be made up by our young
talents’ concerted efforts today. If so, what a blessing it would be both for
our late father and the country!

Mei
September 2013 Xiaokan

 Mei Xiao’ao
 Editor’s Note

This is an unfinished manuscript, written between 1962 and 1965. In

Mei’s plan, there were seven chapters. However, the Cultural Revolution
disrupted his writing and Mr. Mei was purged; all of his manuscripts were
confiscated. Until the year of 1973 when he passed away, only four chap-
ters that were completed during those three years were found. In 1988,
China’s Law Press published the chapters for the first time; nearly three
decades later, its new edition was published. Till then, the value of this
manuscript was unrecognized. Unfortunately, Mei’s synopsis, un-­
transcribed writings and references were missing in history, which have
become an irreparable loss and regret. Ni Zhengyu and Wang Tieya, two
prominent figures in law who enthusiastically supported Mei’s publica-
tions, had already died when the manuscript was published. In memory of
their dedicated support, their prefaces are also appended in this book.
With due respect to Mei, the Chinese translations of English names that
may differ with current translations were not revised.

xxiii
 Contents

1 The Establishment of the International Military Tribunal

for the Far East and Its Jurisdiction  1
1.1 An International Trial of the Major War Crimes: An
Innovative Act After World War II  1
1.2 Lessons Learned from the Failure of the International Trials
After World War I  2
1.3 Preparatory Work During World War II  4
1.4 Process of Establishing Two Tribunals  6
1.5 Jurisdictions of Two Tribunals 10
1.6 Class-A War Criminals and International Tribunal 36

2 Charter and Organization of the International Military

Tribunal for the Far East 39
2.1 Introduction to the Charter of the International Military
Tribunal for the Far East 39
2.2 The Place of the Tribunal and Its Arrangements 45
2.3 Members of Tribunal: Judges and President 53
2.4 International Prosecution Section 77
2.5 Defendants’ Defense: Japanese and American Counsels 87
2.6 Administrative and Personnel Arrangements 99

3 Arrest and Prosecution of Japanese Major War Criminals119

3.1 Four Arrest Warrants of Major War Criminals from the
General Headquarters119

xxv
xxvi Contents

3.2 Preparatory Investigation and Prosecution of the War

Criminals by the International Prosecution Section138
3.3 Selection of, and Bibliographic Guide to, 28 Defendant
Criminals150
3.4 China, United States, United Kingdom, and Soviet Union
Indictments of Major Japanese War Criminals185
3.5 Characteristics and Defects of the Indictment207

4 Trial Proceedings of the International Military Tribunal

for the Far East217
4.1 Basic Provisions on Trial Proceedings in the Tokyo Charter217
4.2 Procedures for the Presentation and Adoption of Exhibits220
4.3 Procedure of Witness Appearing and Testifying in Court232
4.4 An Affidavit from a Witness Who Was Not Appearing in
Court and the Defendant’s Confession255
4.5 Criticism of Court Proceedings264
 About the Author

Mei Ju-ao   Mr. Mei Ju-ao was born in Jiangxi, Nanchang in 1904. He
graduated from Tsinghua School (predecessor of Tsinghua University) in
1924 and then travelled to the United States to study at Stanford
University and University of Chicago Law School, where he received his
J.D. degree. After returning to China in 1929, Mei Ju-ao became a pro-
fessor at Shanxi University, Nankai University, Wuhan University, Fudan
University, the Central Political School, teaching courses including polit-
ical science, civil law, criminal law, introduction to the common law and
international law. From 1934 onwards, he served as a member of the
Legislative Council of the KMT Government and had acted as acting
chairman of its Foreign Affairs Committee. After the victory of the War
of Resistance against Japan, he was assigned by the government, in 1946,
to be the judge of the International Military Tribunal for the Far East
representing China. During his nearly three years of trial work, he made
great efforts to safeguard the national dignity and international justice,
and contributed to the achievement of a just and fair trial. At the end of
1948, the KMT Government appointed him as Councilor of the Executive
Council and Minister of Justice, but he refused to assume office and fled
to Hong Kong. He arrived in Beijing under the arrangement of the CPC
representatives in early December 1949. From 1950 onwards, he served
as adviser to the Ministry of Foreign Affairs, ­representative to the National
People’s Congress and member of its Bills Committee, member of the
Chinese People’s Political Consultative Conference, member of the
World Peace Council, Executive Director of the Chinese People’s

xxvii
xxviii ABOUT THE AUTHOR

Institute of Foreign Affairs, and Director of the Chinese Society of

Political Science and Law. Mei Ju-ao suffered injustice in the “Anti-
Rightists Movement” and the “Cultural Revolution”. He passed away in
Beijing in 1973.
 List of Figures

Fig. 2.1 Layout of the Tribunal 49

Fig. 2.2 Map of the seat arrangements for the hall of trial, International
Military Tribunal for the Far East 52
Fig. 2.3 Judges of International Military Tribunal for the Far East 55
Fig. 2.4 Prosecutors of International Military Tribunal for the Far East 83
Fig. 3.1 Class-A war criminals 157
Fig. 4.1 Prosecution and defense parties 221
Fig. 4.2 Puyi’s testimony 257

xxix
 CHAPTER 1

The Establishment of the International

Military Tribunal for the Far East and Its
Jurisdiction

1.1   An International Trial of the Major War

Crimes: An Innovative Act After World War II
World War II ended with the fiasco of the Axis Powers. Germany surren-
dered on May 8 and Japan on September 2 in the year 1945.
Following Germany’s and Japan’s surrender, the Allied Powers estab-
lished two international tribunals in Nuremberg, Germany, and Tokyo,
Japan, separately known as the International Military Tribunal, Nuremberg,
and International Military Tribunal for the Far East, Tokyo. The two
courts were often abbreviated as Nuremberg (International) Tribunal and
Tokyo (International) Tribunal.
Despite the slight difference in the organization of the two tribunals
(see Chap. 2), they shared missions and purposes (i.e. to arrest, investigate,
prosecute, interrogate, and make judgments upon some of the leaders of
the Axis Powers as the primary or major war criminals).1 Those primary or
major war criminals were sometimes called “Class-A war criminals”, refer-
ring to the people of Nazi Germany and the fascist Japanese government

1
Article 1 of the Charter of Nuremberg International Military Court: “In pursuance of…,
there shall be established an International Military Tribunal for the just and prompt trial and
punishment of the major war criminals of the European Axis.” Article 1 of the Charter of
International Military Tribunal for the Far East: “The International Military Tribunal for
the Far East is hereby established for the just and prompt trial and punishment of the major
war criminals in the Far East.”

© Shanghai Jiao Tong University Press 2018 1

M. Ju-ao, The Tokyo Trial and War Crimes in Asia,
https://doi.org/10.1007/978-981-10-7404-2_1
2 M. JU-AO

who planned, prepared, launched, or executed the wars of aggression with

the highest or primary responsibility. They are central for the countries to
formulate and implement the policies of wars of aggression.
It was an extraordinary event in the international community after
World War II that the major or Class-A war criminals were interrogated
and sanctioned by officially organized international courts in accordance
with proper legal procedures. It was also a pioneering act in the history of
mankind. Prior to that, the leaders of a defeated country, even if they were
the culprits of the wars of aggression, were generally beyond the long arms
of law and had never been subject to court trials or legal sanctions.
Historically, it is not uncommon for a head of a state or a government
to be killed or imprisoned at the hands of the enemy during a war. The
most famous and recent example was Napoleon I who was defeated and
then exiled by the United Kingdom, Russia, Austria, and other nations
with lifelong imprisonment on the island of St. Helena. But his exile was
not a decision adjudicated by any international tribunal or domestic court.
It was indeed a creative initiative after World War II that the law was
applied to sanction the leaders of the defeated countries.

1.2   Lessons Learned from the Failure

of the International Trials After World War I

At the end of World War I, the Central powers had intended to deliver the
German heads and senior officials of state to international trials. However,
that intention was a wishful thinking, finally becoming a joke in history.
When World War I was at an end, “to hang the Kaiser” was prevalent
among the Central and the Allied Powers. Since the War was unprece-
dented in its magnitude and the pain and loss that it caused to people, the
people of those countries were filled with a deep hatred for Kaiser Wilhelm
II and the leaders of the German regime who began the War, desiring
severe and swift punishment for them.
During the Paris Conference held in 1919, a serious discussion occurred
about punishing the Kaiser and the major war criminals according to law,
as indicated in four articles of Chap. 7 (Articles 227–230) of the Treaty of
Versailles.
Article 227 clearly recommended that “a special tribunal will be consti-
tuted to try the accused … with a view to vindicating the solemn
­obligations of international undertakings and the validity of international
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 3

morality”. And Article 228 stipulated that “the German Government rec-
ognizes the right of the Allied and Associated Powers to bring before mili-
tary tribunals persons” under the Kaiser.
According to the provisions of the Treaty of Versailles, the Conference
appointed an international commission of inquiry to “be engaged in
researching the individual’s responsibilities who started the War, listing
their names and draft the charter for organizing the court”. The commis-
sion did as it was instructed.
The Central and the Allied Powers would have made progress on the
trial of German major war criminals, but the effort eventually turned in
vain and ended up in bankruptcy, the reasons of which can be attributed
to the following:

(1) The victory of the October Revolution in Russia. The victory

stunned the proletariat ruling class of the Central and the Allied
Powers, whose attention was subsequently diverted to surrounding
Russia and dealing with the Soviet regime; to implement the provi-
sions on punishing the German war criminals in the Treaty of
Versailles was not their concern any more.
(2) The frictions between the Central powers, especially between the
United Kingdom and France. After World War I, France seemed to
be able to exert a grip over the European continent, which was
against the balance of power on the continent, a traditional foreign
policy long held by the United Kingdom. Therefore, to protect
Germany while curbing France had become a basic principle of
British foreign policy.
(3) The German government refused to cooperate with the idea of
extraditing the war criminals to international trials.

As a result, the provisions on punishing the Kaiser and other major war
criminals in the Treaty of Versailles existed without any actual implementa-
tion. The organizing of an international court stipulated in the Treaty
failed, and the Allied Powers, reluctant to proceed and for their own con-
venience, entrusted the trial to the German government.
The German government did not begin the trial in Leipzig until May
of 1921, two and a half years after the War ended, presided by its Supreme
Court which had no respect for the trial. The insincerity and absurdity of
that trial was without parallel in history.
4 M. JU-AO

According to the Treaty of Versailles, the Allied Powers proposed a list

of 896 major war criminals to the German government for arrest and pros-
ecution. The German government refused and cut the number down to
45, the trial of whom were merely phrased as an “experiment trial”.
However, only 12 of them were actually tried, and only 6 were sentenced
by the Court. Surprisingly, the sentences for the criminals were not severe,
ranging from six months to four years in prison. Two of the six sentenced
war criminals escaped from prison. It was believed that the Court deliber-
ately let the prisoners escape.
The only achievement of the Leipzig Trials was the punishment of
merely four minor war criminals. When Karl Stenger, an infamous and
murderous German general, was found not guilty by the Court, the spec-
tators cheered and offered tribute to him as a “national hero”. Kaiser
Wilhelm II, who must bear the greatest responsibility for the War, fled to
the Netherlands before the end of World War I. However, the Netherlands
refused to extradite him, claiming that such an act would contradict with
its constitution and historical traditions, thereby letting him live at large
without any proper legal sanctions.
That is the reason why the Leipzig Trials were called a farce in history;
and the above-mentioned is all that was achieved from the world’s first
trial of major war criminals after World War I.2
From this simple narrative we can conclude that before World War
II, the conception and attempt to punish the war makers and instiga-
tors in the international community had emerged. The Leipzig Trials
were a fiasco and the provisions on punishing war makers in the Treaty
of Versailles were merely a scrap of paper; even so, the idea of making
them accountable for their acts began to unfold. The failure of the trials
also taught some lessons regarding punishment of war criminals, which
were conducive to the smooth trials of major war criminals of World
War II.

1.3   Preparatory Work During World War II

The Allied Powers (at the time called “United Nations”, referring to the
countries that were engaged in fighting with the Axis Powers, not the
organization established in New York after World War II) had issued some

2
For details about the Leipzig Trials, see Mullins, Leipzig Trials (1921).
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 5

declarations and made preparations regarding the punishment of war

criminals after the War ended:

(1) On January 13, 1942, Belgium, Czech, Greece, the Netherlands,

Poland, Yugoslavia, Luxemburg, Norway, and France issued a joint
declaration, affirming that to punish the war criminals was one of
their major objectives.
(2) In October 1943, the United Nations Commission for the
Investigation of War Crimes was founded in London. Apart from
the above nine countries, China, the United States, and the United
Kingdom also joined the commission.
(3) On November 1, 1943, the Soviet Union, the United States, and
the United Kingdom jointly issued a Statement on Atrocities when
the Moscow Conference concluded. In addition to re-affirming
that war criminals shall be punished, they also claimed that all the
war criminals that committed atrocities “will be sent back to the
countries in which their abominable deeds were done in order that
they may be judged and punished according to the laws of these
liberated countries and of free governments which will be erected
therein”. The Statement also declared that it “is without prejudice
to the case of German criminals whose offenses have no particular
geographical localization and who will be punished by joint deci-
sion of the government of the Allies”, stating that the leaders and
the war instigators of the Axis Powers should be tried by an inter-
national tribunal jointly presided over by the Allied Powers.

In addition to the joint efforts dedicated by the above-mentioned gov-

ernments, the leaders of the Allied Powers also made stern statements on
the post-war punishment of war criminals, the most prominent of which
were:

(1) On July 30, 1943, President Roosevelt issued a statement warning

neutral nations against asylum for war criminals;
(2) On November 6, 1943, Marshall Stalin required “all the fascist
criminals responsible for the present war and the sufferings of the
people shall bear stern punishment”.3

3
For the statements, diplomatic correspondence and declarations, see S. Glueck, War
Criminals: Their Prosecution and Punishment, Appendix B, pp. 109–113.
6 M. JU-AO

1.4   Process of Establishing Two Tribunals

In May 1945, Germany surrendered. From July 17, 1945, the United
Kingdom, the United States, and the Soviet Union held a conference in
Berlin which concluded with the renowned Potsdam Agreement. In Chap.
6 titled “War Criminals”, it reaffirmed its resolution to impose severe pun-
ishment on the major war criminals affiliated with Hitler’s regime, hoping
“the trial of these major criminals should begin at the earliest possible
date”.4 Before this conference, the three powers also held a conference in
Yalta, Crimea, which centered around punishing the German major war
criminals. The Yalta Conference statement decided to “bring all criminals
to just and swift punishment”.5
Driven by the Allied Powers’ unrelenting yearning for punishing the
fascist war criminals during and after the War, the representatives from the
Soviet Union, the United States, the United Kingdom, and France were
convened in London, negotiating on organizing international tribunals to
try the major fascist war criminals. On August 8, 1945, they reached a
London Agreement on establishing the international military tribunals and
the annex, Charter of International Military Tribunal (“Nuremberg
Charter”), which stipulated the constitution, jurisdiction and powers, and
the conduct of the trial.6
The organizing was completed after two months of signing the
Agreement and the Nuremberg Charter. On October 18, 1945, the
Nuremberg Tribunal started the trial of 22 major war criminals, including
Hermann Göring and Rudolf Hess, but the proceedings were not initiated
until October 20.
The International Military Tribunal for the Far East, different from the
founding of the Nuremberg Tribunal, was not directly established under
an international agreement, but by the Supreme Commander for the
Allied Powers at Tokyo under the authorization of a series of international
documents, including the Potsdam Declaration, Japanese Instrument of
Surrender, and the decision made during the Moscow Conference.

4
For the provision about punishing war criminals, see Collection of International Treaties
(1945–1947), World Affairs Press (ed.), pp. 87–88.
5
For the Yalta Conference Communique, ibid. at p. 8.
6
For the London Agreement and the Nuremberg Charter, ibid. at pp. 94–103. Australia,
Belgium, Czech Republic, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg,
the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela,
and Yugoslavia signed this agreement till the end of 1945.
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 7

The Potsdam Declaration was jointly announced on July 26, 1945, by

China, the United States, and the United Kingdom; the Soviet Union
later adhered to the Declaration. The issuance of the Declaration was to
urge the Japanese armed forces to surrender unconditionally, which pro-
vided the terms that Japan should accept once they surrendered. Item 6 of
the Declaration claimed that “there must be eliminated for all time the
authority and influence of those who have deceived and misled the people
of Japan into embarking on world conquest, for we insist that a new order
of peace, security and justice will be impossible until irresponsible milita-
rism is driven from the world”. Item 10 declared that “we do not intend
that the Japanese shall be enslaved as a race or destroyed as a nation, but
stern justice shall be meted out to all war criminals, including those who
have visited cruelties upon our prisoners”.7
On September 2, 1945, Mamoru Shigemitsu and Umezu Yoshijiro,
respectively the foreign minister and Commander-in-Chief, signed the
Instrument of Surrender on behalf of the Japanese government which was
witnessed by Douglas MacArthur, the representative of accepting the sur-
render on behalf of nine Allied Powers. The Instrument also accepted the
provisions of the Potsdam Declaration, writing that “we, acting by com-
mand of and on behalf of the Emperor of Japan, the Japanese Government
and the Japanese Imperial General Headquarters, hereby accept the provi-
sions set forth in the declaration issued by the heads of the Governments
of the United States, China and Great Britain on 26 July 1945, at Potsdam,
and subsequently adhered to by the Union of Soviet Socialist Republics”,
and “we hereby undertake for the Emperor, the Japanese Government
and their successors to carry out the provisions of the Potsdam Declaration
in good faith” in item 6.8
Since Japan accepted all the provisions of the Declaration, it naturally
abided by the provision that “stern justice shall be meted out to all war
criminals”.
However, the Potsdam Declaration solely stipulated the conditions for
Japan’s surrender, not the procedures and measures for implementing
those provisions. Even though Douglas MacArthur, on behalf of the US
government as the Supreme Commander of the Allied Powers, had exclu-
sive authority over the matters related to the occupation and management
of post-war Japan and the implementation of the provisions of the

7
Potsdam Declaration, see Collection of International Treaties (1945–1947), pp. 77–78.
8
The Instrument of Surrender, ibid. at pp. 112–114.
8 M. JU-AO

Instrument, he would also provide a legal basis as authorized by the Allied

Powers, specifically agreed upon during the Moscow Conference to which
China made a consent. In conclusion, such an agreement became a unani-
mous resolution to fight against the Japanese military forces.
The agreement stipulated “the Supreme Commander of the Allied
powers shall take any necessary measures to ensure the Japan’s surrender,
occupation and control will be realized”. That agreement gave the
Supreme Commander extensive power; meanwhile, from the perspective
of the law, he was also responsible for implementing the provisions of the
Declaration, including the punishment of war criminals.9
Based on this agreement, Douglas MacArthur, the incumbent Supreme
Commander of the Allied Powers, who had made political consultations
with the countries that surrendered, issued the Special Proclamation for
Establishment of an International Military Tribunal for the Far East on
January 19, 1946. The Proclamation read as follows:

Whereas, the United States and the Nations allied therewith in opposing
the illegal wars of aggression of the Axis Nations, have from time to
time made declarations of their intentions that war criminals should be
brought to justice;
Whereas, the Governments of the Allied Powers at war with Japan on 26th
July 1945 at Potsdam, declared as one of the terms of surrender that
stern justice shall be meted out to all war criminals including those who
have visited cruelties upon our prisoners;

9
Douglas McArthur, the incumbent Supreme Commander of the Allied Powers in Tokyo
was an arrogant military man and one of the three Generals of the Army. He was a field
marshal in the Philippines when the Japanese attacked Pearl Harbor in December 1941.
After the attack, he was appointed as Commander-in-Chief of US Army Forces Pacific and
the Supreme Commander of the Allied Powers. Douglas MacArthur presided over the war
against Japan until Japan surrendered on September 2, 1945, when he served as the general
representative accepting Japanese surrender. Since the US army was stationed in Japan then,
he arrogated to himself all the power, acting as an emperor for the Tenno. In the rudimentary
stage of occupying and controlling Japan when the memory of Japanese aggression was fresh,
the alert on the brutality of the Japanese troops was still on, and the tendency of harboring
Japan’s war criminals was in embryo, his acts were congruous with the assigned responsibili-
ties by the Allied Powers, such as democratic reforms and war criminal punishment. At that
prime time, the International Military Tribunal for the Far East was established. But soon
after, without authorization he released, on two occasions, 40 or so Class-A war criminals
who had been arrested to be prosecuted in the second and third cases. After the judgment
on the Class-A war criminals in the first case was concluded, all the other Class-A war crimi-
nals were released by him. With no criminals to be prosecuted, the Tribunal disbanded.
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 9

Whereas, by the Instrument of Surrender of Japan executed at Tokyo Bay,

Japan, on 2nd September 1945, the signatories for Japan, by command
of and on behalf of the Emperor and the Japanese Government, accepted
the terms set forth in such Declaration at Potsdam;
Whereas, by such Instrument of Surrender, the authority of the Emperor
and the Japanese Government to rule the state of Japan is made subject
to the Supreme Commander for the Allied Powers, who is authorized
to take such steps as he deems proper to effectuate the terms of
surrender;
Whereas, the undersigned has been designated by the Allied Powers as
Supreme Commander for the Allied Powers to carry into effect the gen-
eral surrender of the Japanese armed forces;
Whereas; the Governments of the United States, Great Britain, and Russia
at the Moscow Conference, 26th December 1945, having considered
the effectuation by Japan of the Terms of Surrender, with the concur-
rence of China have agreed that the Supreme Commander shall issue all
Orders for the implementation of the Terms of Surrender.

Now, therefore, I, Douglas MacArthur, as Supreme Commander for

the Allied Powers, by virtue of the authority so conferred upon me, in
order to implement the Term of Surrender which requires the meting out
of stern justice to war criminals, do order and provide as follows:

ARTICLE 1. There shall be established an International Military Tribunal

for the Far East for the trial of those persons charged individually, or as
members of organizations, or in both capacities, with offenses which
include crimes against peace.
ARTICLE 2. The Constitution, jurisdiction and functions of this Tribunal
are those set forth in the Charter of the International Military Tribunal
for the Far East, approved by me this day.
ARTICLE 3. Nothing in this Order shall prejudice the jurisdiction of any
other international, national or occupation court, commission or other
tribunal established or to be established in Japan or in any territory of a
United Nation with which Japan has been at war, for the trial of war
criminals.10

10
For the No. 1 Special Proclamation of the Supreme Commander of the Allied Powers in
Tokyo (January 19, 1946), see US State Department, Trial of Japanese War Criminals
(Publication No. 2613). It was also reported in China and other foreign newspapers.
10 M. JU-AO

Soon after this special proclamation and the Charter of the International
Military Tribunal for the Far East (“Tokyo Charter”), the Supreme
Commander of the Allied Powers nominated and appointed 11 judges
from China, the United States, the United Kingdom, the Soviet Union,
Australia, Canada, France, the Netherlands, New Zealand, India, and the
Philippines; the judges from India and the Philippines were appointed in
April.
Due to the discrepancy of the judges’ arrival dates in Tokyo, the plead-
ings against 28 Japanese major war criminals were not accepted by the
International Prosecution Section of the Supreme Commander of the
Allied Powers until April 29, 1946. On May 3, the prosecution opened its
case.11

1.5   Jurisdictions of Two Tribunals

1.5.1  
Conceptual Evolution of “War Crimes”
The Tokyo Charter embodied 5 sections with 17 articles, including topics
about the tasks and powers (i.e. jurisdiction), the establishment of the
tribunal (arrangement of agencies and personnel), and the primary prin-
ciples for producing evidence, judgment, sentence, review, and sentence
reduction. In this section, the articles about jurisdiction shall be discussed
first for the following reasons:

(1) The provisions on jurisdiction in the Tokyo Charter were the key
for the establishment and existence of the tribunal, whose confu-
sion also inflamed fiery debates. Not only did the lawyers defend-
ing the accused talk ears off and attack the tribunal’s jurisdiction,

11
From publishing its Charter and list judges to starting the court session, it took the
International Military Tribunal for the Far East three and a half months to begin due to dif-
ferent arrival dates of the judges from 11 countries. The judge from the Soviet Union,
accompanied by Soviet prosecutors and several staff members, arrived two days late before
the court could proceed with the trial. It was rumored that his delay was due to the General
Headquarters of the Allied Powers (GHQ) deliberately placing obstacles of visa issues for his
companions: the Soviet Union had intended to send a team of 70 people to work for the
court and the prosecution section, but the GHQ under the US control considered it too
large a team and refused to issue visas. Through negotiations and consultations, only about
20 entries were allowed. This story fully reveals the arrogance and dominance of the United
States.
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 11

but also a large number of the international law scholars in the

Western countries were opposed to or suspicious of it. Before
World War II, the principles of international law that came to light
from the Tokyo Charter, as it happened, were not perspicuous.
(2) The tribunal affirmed and supported the articles regarding jurisdic-
tion, which made plain the principles embodied therein and devel-
oped them later. All of those are contributions made by the
Nuremberg and Tokyo Trials to modern international law. On
December 11, 1946, the First Session of the General Assembly
reached a resolution that “affirmed” the principles of international
law recognized by the Nuremberg Charter and the Judgment of
the Tribunal.12

For the above two reasons, we believe it will be conducive to under-

stand the work and mission of the tribunal if we clarify the provisions
about jurisdiction in the Tokyo Charter. We will discuss provisions of estab-
lishment, trial procedures, and other matters later in the chapter.
The jurisdiction for the International Military Tribunal for the Far East
is provided in Article 5 of the Tokyo Charter, which reads as follows:
ARTICLE 5 Jurisdiction over Persons and Offenses. The Tribunal shall
have the power to try and punish Far Eastern war criminals who as
individuals or as members of organizations are charged with offenses
­
which include Crimes against Peace. The following acts, or any of them,
are crimes coming within the jurisdiction of the Tribunal for which there
shall be individual responsibility:

(a) Crimes against Peace: Namely, the planning, preparation, initiation

or waging of a declared or undeclared war of aggression, or a war
in violation of international law, treaties, agreements or assurances,
or participation in a common plan or conspiracy for the accom-
plishment of any of the foregoing;
(b) Conventional War Crimes: Namely, violations of the laws or cus-
toms of war;
(c) Crimes against Humanity: Namely, murder, extermination, enslave-
ment, deportation, and other inhumane acts committed against any
civilian population, before or during the war, or persecutions on
political or racial grounds in execution of or in connection with any

12
Yearbook of the United Nations 1946–1947, p. 254.
12 M. JU-AO

crime within the jurisdiction of the Tribunal, whether or not in

violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators, and accomplices participating in the

formulation or execution of a common plan or conspiracy to commit any
or “the foregoing crimes are responsible for all” acts performed by any
person in execution of such a plan.
Despite slight differences in wording,13 the provisions regarding juris-
diction in Article 6 of the Nuremberg Charter are essentially consistent
with those of the Tokyo tribunal.
Following the provisions provided by the Charters of the Nuremberg
and Tokyo Tribunals, chiefly the judgments made by the tribunals which
promoted them and the affirmation of the principles in the United Nations
General Assembly, the “war crime” had only three widely recognized defi-
nitions as was explained above, which, undeniably, was a major develop-
ment compared with traditional international law.
Prior to World War II, the conception of “war crimes” was vague and
confusing. The violations or breach of international warfare laws and prac-
tices (items [a] of Article 5 of the Tokyo Charter and Article 6 of the
Nuremberg Charter) were traditionally admitted as a war crime; the civil-
ians who were not combatants took arms and had engaged in fighting
were considered committing a war crime; and even the acts of espionage,
sabotage (the so-called rebellion acts in the war), or robbery conducted
behind the enemy lines were collectively referred to as a war crime. War
crimes are acts as may be punished by the enemy on capture of the
offenders.14

13
The differences between Article 5 of the Charter of the International Military Tribunal
for the Far East and Article 6 of the Charter of the Nuremberg International Military Tribunal
are as follows: (1) The former defined the Crime against Peace as “the planning, preparation,
initiation or waging of a declared or undeclared war aggression”. The italicized words are not
used in the latter. (2) It was “conventional war crime” in the former, but simply “war crime”
in the latter. (3) The former stipulated the conventional war crime as “violations of the law
or customs of the law”, in which the latter added “such violations shall include, but be not
limited to” to this stipulation. (4) The latter defined the Crime against Humanity as “or
persecution on political, racial or religious grounds”. The italicized word was not used in the
former’s definition. Apart from these differences, the provisions regarding jurisdiction in the
two Charters were completely consistent.
14
See Oppenheim, International Law: A Treatise, London: Longmans, 1948, No. 151,
152, 154, and 155.
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 13

Since the three kinds of war crimes were affirmed by the Charters and
the judgments of both the Nuremberg and Tokyo Tribunals, other acts
against the enemy, such as espionage and sabotage, although punishable
by the belligerents, were not punished as war crimes.15 Consequently, the
scope of the war crime defined in the charters was narrowed down; in fact,
its scope was actually expanded due to the fact that besides the Conventional
War Crimes, two other types of major war crimes—Crimes against Peace
and Crimes against Humanity—were recognized.
The following sections briefly explain the three types of war crimes,
respectively. The “conventional war crime” is approached first.

1.5.2  
Conventional War Crimes
Conventional War Crimes are now recognized as one of the three most
common types of war crimes. The Charter of the International Military
Tribunal for the Far East defines it as “violations of the laws or customs of
war”. While the Charter of the International Military Tribunal adds “such
violations shall include, but not be limited to, murder, ill-treatment or
deportation to slave labor or for any other purpose of civilian population
of or in occupied territory, murder or ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public or private prop-
erty, wanton destruction of cities, towns or villages, or devastation not
justified by military necessity”.
By its nature, the addition of the Charter of the International Military
Tribunal is a list of examples. In fact, the content of that particular crime
is extensive. In the past, it has always been considered one of the most
important war crimes, or even the only type of war crime. Since ancient
times, any atrocities by warring countries against their enemies, such as
murder, arson, robbery, rape, torture, or mutilation of civilians, must be
punished whenever possible, with or without trial. This has been the inter-
national practice for a long time.
As a result of the long-term practice by many countries, many unwrit-
ten principles and practices have been formed in the international context.

15
Oppenheim’s conception of war crime in his International Law: A Treatise was confus-
ing. He still sometimes mistook those acts as war crimes. For the criticism about Oppenheim’s
conception, see И.П.Трайнин, “the war crime”, Oppenheim’s International Law (Chinese
translation), Sect. A, Appendix, Part 2 of Volume 2, pp. 409–413.
14 M. JU-AO

With the progress of the times and the frequent wars, the contents of
those principles and practices are gradually increasing, and the scope has
gradually expanded. By the middle of the nineteenth century, due to
mutual restriction and humanitarian reasons, people began to realize the
necessity to gradually regulate and unify those mature principles and prac-
tices in the form of international convention. Therefore, over the past 100
years, a series of diplomatic conferences have been held internationally on
the method of combat, the use of weapons, and the treatment of the
wounded, prisoners of war (POWs), and civilians. A series of international
conventions have been signed, among which the conventions signed at the
Hague Peace Conferences of 1899 and the Hague Peace Conferences of
1907, especially the Fourth Hague Convention and its annex marine rules
signed in 1907 and the four Geneva conventions signed at the Geneva
meeting in 1949, cover a fairly wide range. Up until the present, we can
almost say that except for a small number of new issues, such as the use of
nuclear weapons and air war, the conventions include most issues related
to declaration of war, use of weapons, combat methods, treatment of
POWs, protection of civilians, position of neutral powers, and many other
rules and practices which countries and individuals shall comply with in
wartime.16 Because most countries have signed, ratified, or acceded to

16
There were a number of rules and practices of war which had been adopted by international
conferences as a convention, declaration, or protocol prior to the Hague Peace Conferences of
1907, including the Paris Declaration Respecting Maritime Law (1856), the Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
(1864), Saint Petersburg Declaration of 1868 Renouncing the Use of Explosive Projectiles
Under 400 Grammes Weight in Time of War; the three conventions and the three declarations
were signed at the Hague Peace Conferences of 1899. The three conventions are the Convention
for the Pacific Settlement of International Disputes, Convention with Respect to the Laws and
Customs of War on Land, and Convention for the Adaptation to Maritime Warfare of the
Principles of the Geneva Convention of August 22, 1864. The three declarations concern the
Prohibition of the Discharge of Projectiles and Explosives from Balloons, the Prohibition of the
Use of Projectiles with the Sole Object to Spread Asphyxiating Poisonous Gases, and the
Prohibition of the Use of Bullets which can Easily Expand or Change their Form inside the
Human Body. Another 14 conventions and declarations signed at the Hague Peace Conferences
of 1907 include Convention for the Pacific Settlement of International Disputes, Convention
respecting the Limitation of the Employment of Force for Recovery of Contract Debts,
Convention relative to the Opening of Hostilities, Convention with respect to the Laws and
Customs of War on Land, Convention relative to the Rights and Duties of Neutral Powers and
Persons in case of War on Land, Convention relative to the Legal Position of Enemy Merchant
Ships at the Start of Hostilities, Convention relative to the Conversion of Merchant Ships into
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 15

those conventions, they have become the internationally recognized codes

of conduct abided by countries in the world. The violation of those rules
would be synonymous with committing war crimes, namely, “Conventional
War Crimes” as stated in the Charter of the International Military Tribunal
for the Far East, commonly referred to as “atrocities”.17

War-ships, Convention relative to the Laying of Automatic Submarine Contact Mines,

Convention concerning Bombardment by Naval Forces in Time of War, Convention for the
Adaptation to Maritime Warfare of the Principles of the Geneva Convention of July 7, 1906,
Convention relative to the Rights and Duties of Neutral Powers and Persons in case of War on
Land, and the Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons.
These conventions partially replace, amend, or supplement the previous conventions. After the
Hague Peace Conferences of 1907, the important development of war legislation included the
London Declaration regarding the Laws of Naval War (1909); the Treaty on the Use of
Submarines and Noxious Gases in War (1922) (although not approved by the United States, but
because of the declaration of the nature of international practice, the above two documents are
still important documents of international law); the Protocol for the Prohibition of the Use in
War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare
(1925) (with more than 46 contracting countries, including the Soviet Union and the Republic
of China; the United States and Japan have still not approved; the People’s Republic of China
signed this protocol on July 13, 1952); the Third Geneva Convention Relative to the Treatment
of Prisoners of War (1929) and the First Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field (1929) (those two conventions
amended and supplemented the Hague Conventions of 1907; the former was part of the fourth
Hague Convention of 1907, which has now become an independent Convention; the latter is the
original Convention, which is amended and expanded to replace the original Convention). After
World War II, countries signed another four conventions in Geneva in 1949: in addition to the
amendments to the two conventions of 1929 (namely the Third Geneva Convention Relative to
the Treatment of Prisoners of War and the First Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field), the Geneva Convention for
the Amelioration of the Condition of the Wounded Sick and Shipwrecked Members of Armed
Forces at Sea was also amended (originally the Tenth Hague Convention of 1907), and the
Geneva Convention relative to the Protection of Civilian Persons in Time of War was added. On
July 13, 1952, the People’s Republic of China signed a reservation to recognize the signature of
the Republic of China’s Government to those four Geneva Conventions and on November 5,
1956, they formally ratified them.
17
The following acts are more important and frequently committed atrocities or
Conventional War Crimes (a violation of the laws and practices of war): (1) Making use of
poisoned or otherwise forbidden arms and ammunition. (2) Killing or wounding soldiers
disabled by sickness or wounds, or who have laid down arms and surrendered. (3)
Assassination and hiring of assassins. (4) Treacherous request for quarter or treacherous
feigning of sickness and wounds. (5) Ill-treatment of POWs, of the wounded, and sick.
Appropriation of such of their money and valuables as are not public property. (6) Killing or
attacking harmless private enemy individuals. Unjustified appropriation and destruction of
their private property and, especially, pillaging. Compulsion of the population of occupied
16 M. JU-AO

Some people say that certain conventions, such as the Hague Conventions,
due to the “general participation clause” (i.e. the convention) would be bind-
ing only if all the belligerents were parties to it; the convention would not be
binding if one of the belligerents was not a party to it. Therefore, the effective-
ness of those conventions is limited and not universal. If the people of the
countries not party to the convention are in violation of the provisions of the
conventions, they should not be punished for violating the laws and practices
of war. The Nuremberg Tribunal has refuted that argument by stating:

The rules of the Hague Conventions are no doubt a progress in the formu-
lation of international law at that time. However, as the Conventions clearly
pointed out, the purpose was to amend the laws and practices of general
operations in war, which were present at that time. By 1939, however, the
rules set forth in the Conventions were recognized by all civilized nations,
and were considered to be merely the laws and practices of war.18

The International Military Tribunal for the Far East holds the same view
of the Hague Conventions by saying that “although the obligation to observe
the provisions of the Convention as a binding treaty may be swept away by
operation of the ‘general participation clause’, or otherwise, the Convention
remains as good evidence of the customary law of nations, to be considered

territory to furnish information about the army of the other belligerent or about his means
of defense. (7) Disgraceful treatment of dead bodies on battlefields. Appropriation of such
money and other valuables found upon dead bodies as are not public property, nor arms,
ammunition, and the like. (8) Appropriation and destruction of property belonging to muse-
ums, hospitals, churches, schools, and the like. (9) Assault, siege, and bombardment of unde-
fended open towns and other habitations. Unjustified bombardment of undefended places
on the part of naval forces. (10) Unnecessary bombardment of historical monuments and of
such hospitals and buildings devoted to religion, art, science, and charity, as are indicated by
particular signs notified to the besiegers bombarding a defended town. (11) Violations of the
Geneva Convention. (12) Attack on or sinking of enemy vessels which have hauled down
their flags as a sign of surrender. Attack on enemy merchantmen without previous request to
submit to visit. (13) Attack or seizure of hospital ships, and all other violations of the Hague
Convention for the adaptation to naval warfare of the principles of the Geneva Convention.
(14) Unjustified destruction of enemy prizes. (15) Use of enemy uniforms and the like dur-
ing battle; use of the enemy flag during attack by a belligerent vessel. (16) Violation of enemy
individuals furnished with passports or safe-conducts, violation of safeguards. (17) Violation
of bearers of flags of truce. (18) Abuse of the protection granted to flags of truce. (19)
Violation of cartels, capitulations, and armistices. (20) Breach of parole. (International Law.
A Treatise. Volume 2 Part II annotation No. 252 by L. Oppenheim.)
18
Judgment of the International Military Tribunal, Nuremberg, London Version (pub-
lished by HMSO), p. 64.
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 17

by the Tribunal along with all other available evidence in determining the
customary law to be applied in any given situation”.19 In many cases, both
the Nuremberg Tribunal and the International Military Tribunal for the Far
East have cited the provisions of the Convention, considering them as “uni-
versally recognized rules”, which had the binding force to Germany and
Japan, regardless of whether they were parties to the Convention or not.
This is true of the Hague Conventions, and it is also true of the Geneva
Conventions and other conventions signed by most other countries. The
binding of those conventions to a country does not lie in the fact that a
country is a party to those conventions, but rather that they express and
declare the generally accepted and commonly abided rules and practices of
war. As a result, the scope of those laws and practices is very broad, and their
binding force is universal.
The act of violating the laws and practices of war is a war crime, which
had been acknowledged long before World War II, and had been recog-
nized by all international law scholars. Although there were not many
cases of sentencing of war criminals before World War II, it was not com-
mon for the prisoners who had violated the laws and practices of the war
(the act of committing atrocities) to be subject to legal sanctions during
the war or after the war. Even the ridiculous Leipzig War Crimes Trials
were actually carried out on the basis of punishing those acts violating the
laws and practices of war. Making it one of the war crimes within their
jurisdiction, the Charters of the two international tribunals of Nuremberg
and the Far East are following the tradition of international law. That part
of the principle of international law has not changed much, but its scope
of application is not only clearer but also more expanded than before. In
the two trials in Tokyo and Nuremberg, the defendants did not raise any
objection to the exercise of the jurisdiction of the court, and at that time
there was no debate among the international jurists and writers.

1.5.3  
Crime Against Humanity
In addition to Conventional War Crimes (i.e. in violation of the laws and
practices of war crimes), the Nuremberg International Military Tribunal
and the International Military Tribunal for the Far East also provide the
power of the court to exercise the jurisdiction of two other types of war

19
Decision of the International Military Tribunal for the Far East, Chinese Translation
(published by 1950s Press in Beijing), Chap. 3, p. 40.
18 M. JU-AO

crimes, namely, “Crimes Against Humanity” and “Crimes Against Peace”

(Crimes of Aggression). Those two crimes are more serious crimes than
Conventional War Crimes. After World War II and the Nuremberg and
Tokyo trials, with confirmation of the United Nations General Assembly
in 1946, those two crimes have been clearly affirmed. That is an important
development in the international law of war crimes.
First, we will review Crimes against Humanity.
All violations of the laws and practices of war are mostly cruel and against
humanity; but “Crimes against Humanity” has special meaning here, which
is not what we usually mean by “violation of humanitarianism”.
The expression or declaration of the laws and practices of war in the
Hague Conventions and other international treaties, in which the prohib-
ited acts are only limited to certain behaviors by the opposing sides in the
war such as rape, robbery, torture, mutilation of civilians, the use of illegal
weapons, not including all inhumane acts, particularly not including
­large-­scale inhumane acts such as the implementation of genocide against
a peaceful population, or to implement collective pogroms against them
for racial, political, or religious reasons. During World War II, the atroci-
ties of Hitler’s organization were unprecedented, and their way of killing
and persecution was beyond description. Their mass slaughter of the Jews,
the Soviets, the people of Czech, and the Polish was so frightful that no
convention makers had ever foreseen such a thing. It is extremely unfair if
we punish only those conventional crimes in violation of the laws and
practices of war, while turning a blind eye to those more severe and vicious
crimes, just because there are no provisions from the Convention, or that
there is no precedent. Therefore, Crimes against Humanity was added to
the Charter of the Nuremberg International Military Tribunal and the
Charter of the International Military Tribunal for the Far East. It comple-
ments the shortcomings of the crime of violating conventional laws and
practices of war, and is also the extension and development of the viola-
tions of conventional laws and practices of war.
For example, the extermination of the Jews by Hitler’s organization for
racial reasons, the Trial of the Major War Criminals before the International
Military Tribunal had astonishing records: Evidence was given of the treat-
ment of the inmates before and after their extermination. There was testi-
mony that the hair of female victims was cut off before they were killed and
shipped to Germany to be used in the manufacture of mattresses. The
clothes, money, and valuables of the inmates were also salvaged and sent
to the appropriate agencies for disposition. After extermination, the gold
 THE ESTABLISHMENT OF THE INTERNATIONAL MILITARY TRIBUNAL… 19

teeth and fillings were taken from the heads of the corpses and sent to the
Reichsbank.

After cremation the ashes were used for fertilizer, and in some instances
attempts were made to utilize the fat from the bodies of the victims in the
commercial manufacture of soap. Special groups traveled through Europe to
find Jews and subject them to the ‘final solution’. German missions were sent
to such satellite countries as Hungary and Bulgaria, to arrange for the ship-
ment of Jews to extermination camps and it is known that by the end of 1944,
400,000 Jews from Hungary had been murdered at Auschwitz. Evidence has
also been given of the evacuation of 110,000 Jews from part of Rumania for
‘liquidation’. Adolf Eichmann, who had been put in charge of this program by
Hitler, has estimated that the policy pursued resulted in the killing of 6 million
Jews, of which 4 million were killed in the extermination institutions.20

No laws and practices of war have any provisions of these frightful atrocities
of the genocide, so we have no choice but to call it “Crime against Humanity”.
The reason why Crimes against Humanity are different from Conventional
War Crimes is that the latter is forbidden by the international laws and rules,
while the former is not allowed by any humanitarian concept and spirit.
Additionally, there are two characteristics of Crimes against Humanity
which are not present in other war crimes. First, Crimes against Humanity
could be committed not only against the enemy but also against the citi-
zens of one’s own country. For example, the Germans massacred their
native (German) Jews on a large scale. Second, Crimes against Humanity
could be committed not only during wartime but also before war. For
example, the Germans began to kill native Jews before World War
II. However, to have these murders considered as war crimes that can be
tried, it must be determined that they were committed to realize other war
crimes, or that they are related to other war crimes. For example, the mass
murder of the native Jews by the Germans was to facilitate their aggres-
sion, which was a form of war crime. Therefore, these types of murders
constitute a Crime against Humanity. The killing, which is not related to
aggression or any war crimes although violating of humanity, could not be
identified as a war crime. Because as the name suggests, a war crime must
be related to the war. Once it is determined that the acts in violation of
humanity are related to the realization of certain war crimes, it is definitely

20
Trial of the Major War Criminals before the International Military Tribunal, London
Edition, p. 15, Chinese Translation, p. 105.
20 M. JU-AO

a Crime against Humanity. It is unnecessary to discuss whether the act is

in violation of the domestic law of the place of the act. For example, once
it is determined that the killing of native Jews by Germans is related to
their aggression, we can conclude that it is a Crime against Humanity,
even if the domestic law of the place of the act (the domestic law of Nazi
Germany) does not prohibit the killing, even encourages it. In fact, most
of those killings are directly or indirectly ordered by the national law.
With that it is easier to understand the provisions of Crimes against
Humanity in the Charter of the Nuremberg International Military
Tribunal and Charter of the International Military Tribunal for the Far
East. Furthermore, with this understanding, we can further recognize the
necessity for the establishment of the crime.
The addition of the crime in the jurisdiction of the Nuremberg
International Military Tribunal and the International Military Tribunal for
The Far East does not cause too many problems. There were no serious
protests against this crime from the defense lawyers, and there was not
much criticism regarding the crime by international law scholars, possibly
because everyone thinks that the punishment of such a crime is
imperative.

1.5.4  
Crimes Against Peace (Crimes of Aggression)
In the Charter of the Nuremberg International Military Tribunal (Article
5) and in the Charter of the International Military Tribunal for the Far
East (Article 6), Crimes against Peace are classified as Item A of court juris-
diction, which is the first item and the most important one. Among 22
major Nazi war criminals such as Hermann Göring and 28 major Japanese
war criminals including Tō jō Hideki, many of whom were accused of Item
B (Conventional War Crimes) or Item C (Crimes against Humanity), or
both B and C, every one of them was accused of Item A war crimes, namely,
Crimes against Peace or the Crimes of Aggression. That is the major charge
against them, while the accusations of B and C are only minor in the two
international tribunals, if not incidental. As a result, those people are often
referred to as “Class-A War Criminals”, and those two trials are often
referred to as trials of Class-A War Criminals of Germany and Japan. Those
defendants are called “Class-A War Criminals”, not only because they have
a very high status and great power within their countries, but also because
they are mainly responsible for the formulation of national policy of aggres-
sion and the implementation of the war of aggression.
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beginning with Frederick II., and ends with a proud assertion that he
will speak the whole truth in spite of the powerful barons whom he
may offend. So here, in the Valley of the Princes, where those are
detained who neglected some peculiarly lofty mission, or postponed
their spiritual welfare to worldly and political care, Sordello,
beginning with the Emperor-elect, Rudolph of Hapsburg (Purg. vii.
94), points out the descendants or successors of those whom he had
rebuked in the other life. Here, singing together to the Queen of
Mercy, the deadliest foes sit side by side, consoling each other;
Rudolph of Hapsburg with Ottocar of Bohemia, Charles of Anjou with
Peter of Aragon; a motive found previously in the vision of Tundal,
where, however, the kings are naturally Irish. On Henry of England
Sordello had been more severe when he lived. After sunset, in the
light of three brighter stars, that symbolise the three theological
virtues, Dante has pleasant talk with Nino Visconti and Currado
Malaspina (Purg. viii.). And, as evening closes in, two golden-haired
Angels, green-clad and green-winged, the Angels of Hope with the
flaming but blunted swords of justice tempered with mercy, defend
the noble souls from the assault of an evil serpent. In the literal
sense, this episode (which seems a relic from earlier mediaeval
visions) may imply that souls in Purgatory have not the intrinsic
impossibility of sinning that is possessed by the blessed of Paradise,
but are kept absolutely free from any sin by the Divine Providence. In
the allegorical sense, the meaning clearly is that the way to moral
and intellectual freedom is a hard one, and temptations to fall back in
despair are many. The tempter would draw man back from regaining
the Earthly Paradise, from which he has once caused his expulsion.
The Mystic Eagle and the Gate of Purgatory.—Just before
the dawn Dante dreams of a golden eagle snatching him up to the
sphere of fire, and, waking when the sun is more than two hours
high, finds that Lucia has brought him to the Gate of Purgatory.
Mystically, the eagle seems to represent the poet’s own spirit,
dreaming that he can soar unaided to the very outskirts of Paradise;
but he wakes to realise that Divine grace indicates the preliminary
stage of purification. The gate of St. Peter with its three steps, of
white marble, exactly mirroring the whole man, of darkest purple
cracked in the figure of the Cross, of flaming red porphyry,
represents the Sacrament of Penance with its three parts: Contrition,
Confession, Satisfaction based upon the love of God. The mournfully
robed Angel of Obedience seated on the rock of diamond, with
dazzling face and flashing sword, is the confessor. His silver and
gold keys, of judgment and absolution, open the gate to Dante; the
seven P’s traced by his sword on the poet’s forehead are to be
effaced one by one in his ascent (Purg. ix.).
Moral Topography.—Within the gate is Purgatory proper with its
seven terraces, each devoted to the purgation of one of the seven
capital sins, “out of which other vices spring, especially in the way of
final causation” (Aquinas). Whereas in the Inferno sin was
considered in its manifold and multiform effects, in the Purgatorio it is
regarded in its causes, and all referred to disordered love. The
formal element, the aversion from the imperishable good, which is
the essence of Hell, has been forgiven; the material element, the
conversion to the good that perishes, the disordered love, is now to
be purged from the soul. In the allegorical or moral sense, since
love, as Aquinas says, is “the ultimate cause of the true activities of
every agent,” it is clear that man’s first duty in life is to set love in
order; and, indeed, the whole moral basis of Dante’s Purgatory rests
upon the definition of St. Augustine that virtue is ordo amoris, “the
ordering of love.” In the first three terraces, sins of the spirit are
expiated; in the fourth terrace, sloth, which is both spiritual and
carnal; in the fifth, sixth, seventh terraces, sins of the flesh. This
purgation, which involves both pain of loss for a time and
punishment of sense, is effected by turning with fervent love to God
and detesting what hinders union with Him. Therefore, at the
beginning of each terrace, examples are seen or heard of virtue
contrary to the sin, in order to excite the suffering souls to extirpate
its very roots; and, at the end, examples of its result or punishment
(the “bit and bridle”). These examples are chosen with characteristic
Dantesque impartiality alike from Scripture and legend or mythology;
but, in each case, an example from the life of the Blessed Virgin is
opposed to each capital sin. At the end of each terrace stands an
Angel—personification of one of the virtues opposed to the sins or
vices. These seven Angels in their successive apparitions are
among the divinest things of beauty in the sacred poem. It is only
when sin is completely purged away that man can contemplate the
exceeding beauty, the “awful loveliness” of the contrary virtue.
First Terrace.—Steep and narrow is the path up to the first
terrace, where Pride is purged away (Purg. x). Carved upon the
mountain side are fair white marble images of wondrous beauty,
setting forth great examples of Humility, alike in “them of low degree”
(Mary at the Annunciation) and in “the mighty” (David and Trajan,
rulers respectively of the chosen people of the two dispensations,
the Jews and the Romans). Wearily and painfully the souls of the
proud pass round, pressed down by terrible weights, reciting a
paraphrase of the Lord’s Prayer, for themselves and those they have
left on earth. And seldom has the Catholic doctrine of prayer for the
dead been more winningly set forth than in Dante’s comment (xi. 31-
36). A partaker in some degree of their punishment, Dante, all
bowed down, goes with these souls; he speaks with Omberto
Aldobrandesco, who is expiating pride of birth, and Oderisi of
Gubbio, the miniaturist, who is purifying his soul from pride of
intellect. The latter points out the great Ghibelline burgher statesman
of Siena, Provenzano Salvani, expiating pride of dominion—the sin
which turned so many an Italian patriot of the Middle Ages into a
tyrant. Figured upon the pavement below their feet are examples of
Pride’s punishment, like the designs on the pavement of the Duomo
of Siena (Purg. xii.). Noon has passed when the Angel of Humility
shows the way up to the next terrace, and with the waving of his
wing removes the first P from Dante’s forehead. “Blessed are the
poor in spirit,” celestial voices sing, as, with almost all weariness
gone since Pride is expiated, Dante ascends the steep way.
Second Terrace.—In the second and narrower circle Envy is
purged. Examples of charity, “courteous invitations to the table of
Love,” are cited by invisible spirits flying past. The envious, clothed
in haircloth, lean helplessly shoulder to shoulder against the rock,
their eyelids sewn up with iron stitching. Sapia of Siena, the
kinswoman of Provenzano Salvani, at whose fall and the defeat of
her countrymen she rejoiced, tells her history in lines of singular
beauty (Purg. xiii.). Guido del Duca denounces the evil dispositions
of the inhabitants of Tuscany, and bewails the degeneracy of the
noble houses with the consequent decay of chivalry in his own
province of Romagna; envious on earth of prosperity of others, these
souls mourn now for its decline (xiv.). Like peals of thunder the cries
of spirits follow each other in citing Envy’s punishment. As they go
towards the sunset, the dazzling Angel of Fraternal Love removes
the mark of Envy. “Blessed are the merciful,” “Rejoice thou that
conquerest.” As they mount Virgil expounds the difference between
material goods, which are diminished by sharing and beget envy,
and the infinite good of Paradise, where love increases with every
soul that enters into the joy of the Lord, and its communication is
measured only by the charity of each soul that is made its mirror
(Purg. xv.).
Third Terrace.—On reaching the third terrace where Anger is
purged, Dante sees examples of meekness and forgiveness in
vision. From the black, pungent, and tormenting smoke which
envelopes the souls of the once wrathful, who now call upon the
Lamb of God for peace and mercy, the Lombard Marco reconciles
Free Will with stellar influence, and ascribes the evil condition of Italy
and the world to the neglect of law, the confusion of the spiritual and
temporal power, and the papal usurpation of imperial rights (Purg.
xvi.). In this terrace Dante again partakes of the pains of the penitent
souls. As the sun is setting, he issues from the dark mist. A most
significant passage on the power of the imagination to form images
not derived from the senses (xvii. 13-18) introduces the visions of
Anger’s punishment, from which the poet is roused by the dazzling
splendour of the Angel of Peace or Meekness, who fans away the
third P and shows the way up: “Blessed are the peacemakers who
are without evil wrath.”
Fourth Terrace.—The stars are appearing as they reach the
fourth terrace, where souls are purged from Sloth. We saw that, in
the Inferno, the Aristotelian division of things to be morally shunned
was discussed, and the ethical structure of the first canticle
expounded, in the circle intermediate between Incontinence and
Malice (Inf. xi.); so, in the Purgatorio, a compulsory pause in the
terrace intermediate between sins of spirit and sins of flesh is
selected by Virgil for his great discourse upon Love, on which is
based the moral system of the second realm (Purg. xvii. 91-139,
xviii. 13-75). It is practically a sermon on the text of Jacopone da
Todi, Ordena questo amore, tu che m’ami, “Set this love in order,
thou that lovest me”; since in rational beings disordered love
produces the seven capital vices. Pride, Envy, Anger are regarded
as distorted love; Sloth as defective love; Avarice, Gluttony, Luxury
as excessive love. Love is the golden net whereby God draws back
to Himself all creatures that He has made, whether inanimate,
sensitive, or rational—by the tendencies or inclinations He has given
them to make them seek the end for which they are ordered and
disposed, according to the Eternal Law. Rational beings alone have
Free Will, by which man merits or demerits from the Divine Justice,
according as he inclines to good or evil loves. Love’s tendency to
good is the precious material upon which Free Will acts like the
craftsman’s hand, to fashion a satyr’s mask or a crucifix.
At the end of this discourse, the slothful rush by at full speed in the
moonlight, so full of longing to lose no time through too little love,
that the Abbot of San Zeno cannot stop while he answers Virgil’s
question; those in front cry out examples of alacrity in Mary and
Caesar; those behind chant Sloth’s punishment in the chosen people
of the Old Testament and the Trojan ancestors of the Romans.
The Siren and the Angel of Zeal.—Before the dawn of the third
day in Purgatory, Dante has in his sleep a marvellous dream of the
Siren (sensual seduction, concupiscence of the flesh), from which he
is delivered by a holy and alert lady who calls upon Virgil (prevenient
grace, or the wisdom and prudence of Proverbs vii.). The Siren is the
dream-prelude to the purgation of sins of the flesh, as the Eagle had
been to that of sins of the spirit. The sun has risen; and the Angel of
Zeal (or of Spiritual Joy) cancels the fourth P and shows the way up
to the next terrace. “Blessed are they that mourn, for they shall have
their souls wed to consolation.” Sloth is a heaviness and sadness
which weighs down the soul, a sadness at spiritual good, to be
fought by thinking on spiritual things. Most fitly then do the wings of
the Angel of Zeal point upwards, and his words tell of a nobler
sorrow, a mourning which shall be followed by Divine consolation
(Purg. xix.).
 Fifth Terrace.—In the fifth terrace, the avaricious and prodigal,
whose souls on earth cleaved to the dust, lie face downwards to
earth; unable to move hand or foot until the sin of Covetousness is
purged away, the sin which, according to Aquinas, “although not
absolutely the greatest of sins, yet has in some sense a greater
deformity than the rest, since by it the human heart is subjected even
to external things.” Pope Adrian V. tells the story of his tardy
conversion, and has tender words for his niece Alagia, the wife of
Moroello Malaspina (Purg. xix.). It is a companion episode to that of
Nicholas III. in the corresponding canto of the Inferno. In this circle
the souls themselves cry out the examples and warnings, by day and
night respectively. The soul of Hugh Capet, “the root of the evil plant
which overshadows all the Christian earth,” pours forth bitter
sarcasm and scathing invective upon all the royal house of France,
the great Guelf power that opposed the Empire, oppressed Italy, and
wrought scandal in the Church. A monument of poetic infamy is
especially raised to Philip the Fair and the three Carlos; and there
are few more glorious examples of Christian magnanimity than the
burning words in which Dante, distinguishing the man from the office,
brands the sacrilege of Anagni, the outrage committed upon him
whom the poet held as his own deadliest foe, and yet the unworthy
Vicar of Christ. Nowhere else, save in the reference to the Jubilee
(Purg. ii. 98, 99), does Dante treat Boniface as lawful pope (cf. Inf.
xix. 52-57; Par. ix. 142, xxvii. 22-24). It has been thought that Canto
xx. was composed while the Church was ostensibly supporting the
policy of Henry VII.; before attacking the Templars, the French king
had endeavoured to renew the outrage of Anagni by inducing Pope
Clement to condemn the memory of Boniface. With a mighty
earthquake, a universal chorus of Gloria in excelsis from the
suffering souls, the poet Statius is liberated, and joins Dante and
Virgil (Purg. xxi.). He explains how the pains of Purgatory are
voluntarily endured, since, against the hypothetic or absolute will
with which they desire the bliss of Paradise, the souls suffer these
purifying pains with the conditional or actual will, the same inclination
or impulse or desire (talento) which they formerly had to sin. Thus it
is free will itself that imposes the purgatorial process, and that alone
shows the soul when purification is complete. The delicious scene of
the recognition of Virgil by Statius is full of that peculiarly tender
Dantesque playfulness that informs the two Eclogues; Dante’s
affectionate humour in dealing with those he loved is one of the most
attractive aspects of his character, and one perhaps too often
missed.
Sixth Terrace.—The Angel of Justice has removed the fifth P
from Dante’s forehead, opposing in his song the thirst of justice to
that of gain. As they mount, Statius explains to Virgil how he was
converted from prodigality by a line in the Aeneid, and led to
Christianity by the fourth Eclogue (Purg. xxii.). The conversion of a
pagan to Christianity through reading Virgil occurs in a story told by
Vincent of Beauvais; Dante was probably influenced in applying this
to Statius, representing him as a secret convert to the true faith, by
his study of the Thebaid; for there, in the last book, Statius describes
the Altar of Mercy at Athens in language which harmonises with the
words of Christ in the Gospels and the address of his own
contemporary, St. Paul, to the Athenians in the Acts. The poets
pursue their way with greater confidence now that Statius is with
them, and reach the sixth terrace, where unseen spirits cry out
examples of temperance from the tree beneath which drunkenness
and gluttony are purged. The spirits, terribly wasted, suffer intense
torments of hunger and thirst in the presence of most tempting food
and drink; but the sanctifying pain is a solace, desired even as Christ
willed to die for man. With the soul of Forese Donati, Dante holds
loving converse; the memory of their dissolute lives together is still
grievous; the poet makes amends for his old slander of Forese’s wife
Nella, by the tender lines now placed upon her husband’s lips (Purg.
xxiii. 85-93). Forese darkly foretells the death of Corso Donati, which
appears to be the latest event in Florentine history mentioned in the
poem (xxiv. 82-90). Whatever the friendship of these two had been
on earth, it was fair and lovely indeed on the Mount of Purgation.
Amongst many others are Pope Martin IV. and the poet
Bonagiunta of Lucca, whose talk with Dante upon the dolce stil
nuovo, the “sweet new style,” is one of the landmarks for the student
of poetry (Purg. xxiv. 49-60). Dante’s famous definition of his own
position expresses, in another form, the truth that all great poetry is
the “transfigured life” of its author:[35] “I am one who, when Love
inspires me, note, and give utterance in that fashion which he
dictates within.” It is already anticipated in the prose passage
prefixed to the Donne che avete in the Vita Nuova (xix.), and
completes the conception of poetry set forth in the De Vulgari
Eloquentia.
The Seventh Terrace.—Passing another tree, a shoot from the
tree of knowledge, beneath which the purging pangs are renewed,
and from whose branches spirit voices proclaim examples of
gluttony’s punishment, they are summoned upwards by the glowing
and dazzling Angel of Abstinence, fragrant with grass and flowers as
the air of May. As they ascend the narrow stairs towards the last
terrace, Statius explains the generation of the body and the infusion
of the rational soul, which exists, after the body’s death, invested
with an aerial body as a shade (Purg. xxv. 31 et seq.). Apparently it
is because revelation has some voice in these high matters that the
Christian Statius gives Dante this exposition, instead of Virgil, and at
the latter’s request; until the seventh terrace is reached, where
sensual passion is expiated in the bosom of the great burning.
Singing to the God of Supreme Clemency, crying aloud examples of
chastity or of lust’s punishment, two bands of souls, divided
according to the nature of their sin, pass through the fire in opposite
ways (Purg. xxvi.). Here is Guido Guinizelli of Bologna, father of the
poets of the dolce stil nuovo, whom Dante gazes upon in rapt
admiration, and addresses with impassioned love and worship. But
Guinizelli—with that humility which is so characteristically Dante’s
own—indicates as miglior fabbro del parlar materno, a “better
craftsman of his mother-tongue,” Arnaut Daniel, the cunning
Provençal song-smith, who invented the sestina, and whose metrical
skill and originality won for him a higher place in the estimation of the
poet of the rime pietrose than modern students of the troubadours
are usually disposed to concede.
The Purging Fire.—At sunset the Angel of Purity, singing
“Blessed are the clean of heart,” bids the poets pass through the
flames that lie between them and the last stairway—the purging fire
that is the wall between Dante and Beatrice. Dante endures the
“burning without measure”; and they reach the ascent, greeted by
dazzling light and celestial strains of Venite benedicti Patris mei. The
Cherubims with the flaming sword, “turning every way to keep the
way of the tree of life” (Gen. iii. 24), are thus welcoming man’s
restoration to the Garden of Eden, as the serpent had endeavoured
to impede it in the Valley of the Princes. Now it is a delight to mount;
but night comes on, and Dante, watched over by Statius and Virgil,
falls asleep on the stairs (Purg. xxvii.).
Leah and Liberty.—Just before dawn, prelude to the new day, he
dreams of Leah, a young and lovely lady gathering flowers in a
meadow. The theologians took Leah as type of the active life, and
Rachel, her sister, of the contemplative; a symbolism to which
Richard of St. Victor gave a more mystical colour, by interpreting
Leah as “affection inflamed by divine inspiration, composing itself to
the norm of justice.” Leah may then represent the affection, thus
inflamed and ordered, which is the perfection of the active life. At
sunrise the topmost stair of Purgatory is reached, and Virgil, who can
himself discern no further, resigns his guidance at the entrance to
the Garden of Eden. Dante’s judgment has been made free, right,
and whole; per ch’ io te sovra te corono e mitrio, “wherefore I crown
and mitre thee over thyself” (xxvii. 142). It has been supposed that
Virgil is here resigning to Dante the crown and mitre of the Emperor;
mitratus et coronatus was the expression used for the coronation of
an Emperor when the Pope placed upon his head a mitre and a
crown, which afterwards were united in the mitred crown, as seen in
the great fresco at Santa Maria Novella. Others refer the crown to
temporal or imperial authority, and the mitre to spiritual or
ecclesiastical; for (Mon. iii. 4) “if man had remained in the state of
innocence in which he was made by God, he would have had no
need of such directive regimens,” which are “remedial against the
infirmity of sin.” Dante, purified from sin, has regained this state of
innocence, and has attained that liberty through which “we have our
felicity here as men and our felicity elsewhere as Gods” (Mon. i. 12).
In any case, Virgil is confirming the freedom which Dante has sought
and gained by the passage through Purgatory.
 The Earthly Paradise and Matelda.—The Earthly Paradise
represents “blessedness of this life, which consists in the exercise of
man’s natural powers” (Mon. iii. 16). This blessedness is found in the
twofold exercise of the mind: the practical, which “consists in
ourselves working virtuously, that is, in integrity, with prudence, with
temperance, with fortitude, and with justice”; and the speculative,
which consists “in considering the works of God and of nature”
(Conv. iv. 22). In this Earthly Paradise, the music of whose birds and
trees has surely passed into the wonderful six cantos that close the
Purgatorio, Dante meets, amidst the flowers on Lethe’s banks, the
glorified realisation of the Leah of his dream (Purg. xxviii.). She has
been taken as symbolising the glorified active life in the state of
recovered Eden, realising in the Church of Christ what Leah had
dimly prefigured in the Old Testament; the active Christian life;
innocentia bonorum operum, the virtuous use of earthly things,
directly ordered to the love of our neighbour; the temporal felicity of
the Earthly Paradise. Since the purgatorial process is the freeing of
the soul from disordered love, we may follow Richard’s interpretation
of Leah, and take her as representing love rightly ordered and
inflamed by divine inspiration. Presently she is called Matelda (xxxiii.
119), and it is probable that she is the idealised presentment of a
real person. All the earliest commentators, excepting the Ottimo,
identify her with the great Countess of Tuscany, in support of which
view might be urged the historical work of the Countess in the revival
of the study of Roman Law at Bologna—Roman Law being, for
Dante, the secular counterpart of the “perfect law of liberty.” Some
modern commentators prefer to seek her prototype in one or other of
the ladies of Vita Nuova; for instance, in that lady of very sweet
speech who had rebuked Dante at the crisis of his “new life.” Others
have attempted to identify her with Mechthild of Magdeburg or
Mechthild of Hackeborn, two German mystical writers of the latter
part of the thirteenth century whose works show occasional
analogies with the Commedia. It may be observed that her
counterpart, as Rachel to Leah, is not Beatrice, as sometimes
supposed, but St. Bernard, in the closing cantos of the Paradiso.
Matelda explains her joyous aspect by referring Dante to the Psalm
Delectasti (Ps. 92, 91 Vulgate), and her discourse of Eden and its
rivers (realising the Golden Age sung by the classical poets)
communicates to Virgil and Statius her own celestial joy: “Thou has
given me, O Lord, a delight in what Thou hast made: in the works of
Thy hands I shall rejoice.” She points out to Dante’s gaze the
wondrous pageant, which astonishes Virgil as much as his pupil, the
mystical procession that represents the triumphal march of the
Church (Purg. xxix.).
The Pageant of the Church.—With brilliant light and ineffable
melody, the triumph advances: “I saw the holy city, the new
Jerusalem, coming down out of heaven from God, prepared as a
bride adorned for her husband” (Rev. xxi. 2). Headed by seven
candlesticks of gold as standards, followed by the twenty-four elders,
white-robed and crowned with lilies, singing Mary’s praises; between
the four living creatures of Ezekiel and St. John, crowned with green,
comes a triumphal chariot, more glorious than the sun, upon two
wheels; drawn by a Griffin, half lion and half eagle, whose golden
wings stretch up far out of sight, through the seven luminous bands
that form the processional canopy. By the right wheel dance three
maidens, symbolic of the theological virtues; by the left wheel dance
four, who represent the cardinal virtues, following the measure of
Prudence, as the others take their step from the song of Charity. The
seven candlesticks are the gifts of the Holy Spirit; the twenty-four
elders, either the patriarchs and prophets, or the books of the Old
Testament; the four living creatures, the four Evangelists, or their
four Gospels; the Griffin, Christ Himself in His Human and Divine
Natures. Lastly, follow seven more elders, white-robed but crowned
with flaming red flowers; a physician, and one with shining sword;
four of humble appearance; an old man “sleeping with face alert.”
According to Benvenuto da Imola, these represent St. Peter (who
had intrusted to him the power of healing souls) and St. Paul, the
four great Latin doctors, and St. Bernard. More usually they are
regarded as personifying the books of the New Testament—the Acts,
St. Paul’s Epistles, the Epistles of St. Peter, James, John, and Jude,
the Apocalypse or Revelation of St. John. Upon the chariot, amidst a
hundred Angels singing and scattering flowers, Beatrice appears,
clad in the mystical colours, red, white, green, crowned with the olive
of wisdom and of peace over her snow-white veil. And, at the advent
of the Wisdom divinely revealed to man, Virgil silently vanishes; he
has tasted of the delights of the Earthly Paradise, has witnessed the
triumph of the Church from which he is for ever cut off, the Faith he
never knew, and has gone back to his mournful dwelling-place (Purg.
xxx.).
Beatrice and Dante.—The precise significance of the
reproaches which Beatrice pours upon Dante for his mode of life
after her death, with the poet’s own bitter shame and intense
repentance (xxx., xxxi.), depends upon the view taken of his
character and the nature of the wanderings represented in the dark
wood. That these aberrations were mainly philosophical and
intellectual, as sometimes supposed, appears highly improbable. We
would regard Dante’s confession here as one of his most personal
utterances, and hold that the cherubically inspired singer of
righteousness is deliberately casting aside the allegorical veil which,
in the Convivio, he had attempted to throw over the things in the past
which still severed him from the ideal life when he wrote: “I fear the
infamy of having followed such great passion.” It is a personal
episode, in which Beatrice is the woman loved and to whose
memory the poet has been unfaithful, standing out clearly from the
allegorical mystery by which it is surrounded and in which it is set.
After Matelda has drawn Dante through Lethe, the four cardinal
virtues, which “perfect the intellect and appetite of man according to
the capacity of human nature,” lead him to the breast of the mystic
Griffin; and, in response to the song of the three theological virtues,
which perfect man supernaturally, Beatrice at last unveils her
countenance to his gaze: “O splendour of living light eternal.”
Concluding Allegories of the “Purgatorio.”—The allegory is
resumed. In the light of this revelation, now that he is purified and
free from sin, Dante beholds a vision of the Church and Empire
(Purg. xxxii.). That glorious procession had first presented an ideal of
the Church as Divine Providence intended it to be, before it became
the vessel that the serpent of simony broke; the Bride that the Divine
Spouse ordained for the guidance of the world. Such being the ideal,
Dante beholds in a series of allegorical visions its history, in
conjunction with the Empire, from the first coming to Rome down to
the transference of the papal chair to Avignon. The great procession
moves on through the divine forest, the Griffin still drawing the
chariot with Beatrice seated upon it; Matelda with Dante and Statius
following after the right wheel. Even as the divine origin of the
Church has been seen in the triumphal car, so now the divine origin
of the Empire is indicated in the desolate and despoiled tree which
they reach. The tree of knowledge of good and evil, since the
prohibition to eat of that tree was the beginning of law and the duty
of obedience, represents Natural Law or Natural Justice, what Dante
calls ius; which “in things is nought else than the similitude of the
divine will” (Mon. ii. 2). The expression of this natural justice and the
means for its effectuation in human society is Law, which Dante
identifies with the Empire, and thus the tree becomes the symbol of
the Empire and of the obedience due to it. The tree is destitute of
flowers and foliage till the Griffin comes to it, who plucks nothing
from it: “Thus is preserved the seed of all justice” (Purg. xxxii. 48; cf.
our Lord’s words to St. John, Matt. iii. 15). Justice can alone be
fulfilled when the Church follows this example of her Divine Founder,
and usurps none of the temporal rights of the Empire. After the
chariot has been bound to the tree, the previously bare plant breaks
out into purple leaves and flowers. The Griffin and his train return to
Heaven, leaving Beatrice to guard the chariot of the Church, seated
beneath the shadow of the Imperial Tree, upon its root, which is
Rome. In a new series of visions Dante beholds the sequel; he sees
the conflict of the past, contemplates the corruption of the present,
hearkens to the hope of the future. The persecution of the Church by
the early Roman Emperors is followed by the inroad of the first
heresies; and the donation of Constantine by the rising of the dragon
of schism or simony. By more assumption of secular power and
dignities, the chariot becomes monstrously transformed, and
shamelessly usurped by the harlot, who represents the corrupt
ecclesiastical authority enthroned in the place of Revelation, a false
and degraded theology based upon the Decretals instead of the true
divine science of the Scripture and the Fathers. By her side a giant
appears who, after alternate caressing and scourging of the usurper,
unbinds the transfigured chariot from the tree, and drags it away
through the forest—symbolical of the interference of the royal house
of France, ending in the transference of the Papacy from Rome to
Avignon.
A Deliverer Announced.—But to the mournful psalm that the
maidens around her raise, Deus venerunt gentes, Beatrice answers
in words of hope; “a little while,” and the spiritual guide shall rise
again from the black tomb of Avignon. And, as they move on, she
utters to Dante a further prophecy (Purg. xxxiii.). “The vessel that the
serpent broke was and is not,” so completely has corruption and
simony degraded the chariot of the Bride of Christ. But vengeance
shall fall upon the guilty parties, and the eagle shall not for ever be
without an heir; for already a favourable disposition of the stars is at
hand, under which a messenger of God shall come, who shall slay
the harlot and the giant. It is probably the same event as the coming
of the Veltro. Dante is to repeat her words “to those that live the life
which is a running to death,” and not to conceal what he has seen of
the tree. Apparently (Purg. xxxiii. 58-72) he is to make manifest that
the Empire is of divine origin, and to recognise that the precept given
by God to our first parents corresponds now with the duty and
obedience man owes to the Empire. The law under which Adam
lived was the prohibition to eat of the tree; the law under which his
descendants, the commonwealth of the human race, live is the
Empire. As Parodi puts it, it is not a new sense superimposed upon
the first; “it is simply the same single meaning, the historical
circumstances alone appearing changed.” The sin of Adam is
repeated when the Empire is usurped of its rights or its authority
attacked, for God created it holy for the purpose of leading man to
temporal felicity—the goal, here and now, of the human race.[36]
Lethe and Eunoë.—At noon they come to where the rivers of
Lethe and Eunoë issue from one mystical fountain, the fountain of
the grace of God. Here Beatrice refers Dante to Matelda, who leads
him and Statius to drink of Eunoë, which quickens dead virtue and
restores memory of every good deed in those who have first been
bathed in Lethe, which takes away the memory of sin. According to
St. Thomas Aquinas (Summa, iii. 89, 5), works done in charity,
although in a sense dead through sin, are brought to life through
penance. Through repentance they regain their efficacy of leading
him who did them into eternal life. Therefore Dante writes: “I returned
from the most holy stream, remade even as young trees renewed
with new foliage, pure and disposed to ascend to the stars.”

4. The “Paradiso”
Structure.—Dante’s Paradise consists of the nine moving
heavens, according to Ptolemaic astronomy, crowned by the tenth
motionless and divinest Empyrean heaven, “according to what Holy
Church teacheth, who cannot lie” (Conv. ii. 3, 4). The nine moving
spheres revolve round our globe, the fixed centre of the Universe,
each of the lower eight being enclosed in the sphere above itself.
The seven lowest are the heavens of the planets: the Moon,
Mercury, Venus, the Sun, Mars, Jupiter, Saturn. The eighth or stellar
heaven, the sphere of the Fixed Stars or Firmament, is the highest
visible region of the celestial world, and to some extent corresponds
to the Earthly Paradise in the lower realms. Above this visible
firmament, the ninth or Crystalline heaven, the Primum Mobile,
directs with its movements the daily revolution of all the others. In it
nature starts; from it proceed time and motion, with all celestial
influence for the government of the world (Par. xxvii. 106-120). It is
“the royal mantle of all the volumes of the world, which is most
fervent and most living in God’s breath, and in His ways” (Par. xxiii.
112-114); and it communicates in different degrees some
participation in this quickening breath of God to the other sphere
which it encloses, and to all the Universe. It moves swiftest of all,
from the fervent desire of all its parts to be united to the Empyrean,
the spaceless and motionless ocean of Divine love, where God
beatifies the saints and Angels in the vision of His Essence. This
Empyrean is the true intellectual Paradise, for which the lower
heavens are merely sensible preparations. “This is the sovereign
edifice of the world, in which all the world is included, and outside of
which is nothing; and it is not in space, but was formed only in the
First Mind” (Conv. ii. 4); “The heaven that is pure light; light
intellectual full of love, love of true good full of joy, joy that
transcendeth every sweetness” (Par. xxx. 39-42).
 Gradations.—Each of the nine lower spheres represents a step
higher in knowledge, in love, in blessedness, until in the true
Paradise the soul attains to perfect knowledge, supreme love, and
infinite blessedness in union with the First Cause, in the Beatific
Vision of the Divine Essence. The ascent is marked by the increased
loveliness of Beatrice, as she guides Dante upwards from heaven to
heaven; it is marked, too, by gradations in the brilliancy of the
blessed spirits themselves, by their ever increasing ardour of charity
towards the poet, and by the growing spirituality of the matters
discussed in each sphere—veil after veil being drawn aside from the
mysteries of the Divine treasure-house.
The Saints.—“To show forth the glory of beatitude in those souls,”
says the letter to Can Grande, “from them, as from those who see all
truth, many things will be sought which have great utility and delight”
(Epist. x. 33). All the saints without exception have their home and
glorious seats with Mary and the Angels in that Empyrean heaven,
where they are finally seen as glorified spirit likenesses of what they
were on earth. But into each preparatory sphere, excepting the ninth,
these citizens of eternal life descend to meet Dante as, with
Beatrice, he approaches the gates of the celestial city—like the
noble soul returning home to God in the fourth and last part of life:
“And even as its citizens come forth to meet him who returns from
a long journey, before he enters the gate of the city, so to the noble
soul come forth, as is fitting, those citizens of eternal life. And thus
they do because of her good works and contemplations; for, being
now rendered to God and abstracted from worldly things and
thoughts, she seems to see those whom she believes to be with
God” (Conv. iv. 28).
In all these spheres, excepting the first, and to some extent the
second, the spirits of the blessed appear clothed in dazzling light,
which hides their proper semblances from Dante’s gaze, making
them appear as brilliant stars or flaming splendours. In the tenth
Heaven of Heavens he is supernaturally illumined, and enabled
thereby to behold them in their glorified spirit forms “with
countenance unveiled” (Par. xxii. 60, xxx. 96, xxxi. 49).
 In the three lower heavens, to which earth’s shadow was
supposed to extend (Par. ix. 118, 119), appear the souls whose lives
were marred by inconstancy in their vows, who were moved by vain
glory, or yielded to sensual love. They descend into these lower
spheres to give Dante a sensible sign of the lesser degree of the
perfection of their beatitude in the Empyrean. Domus est una, sed
diversitas est ibi mansionum; “The house is one, but there is a
diversity of mansions there.” There are different mansions of
beatitude in God’s house, proceeding from inequality in the soul’s
capacity of the Divine Charity; but in that house all are fulfilled with
the Vision of the Divine Essence, and each perfectly beatified
according to his own capacity of love and knowledge. In the spheres
of the four higher planets appear the souls of great teachers and
doctors, of Jewish warriors and Christian knights, of just rulers, of
ascetic monks and hermits; they appear as types of lives perfected
in action or in contemplation, as a sign of the different ways in which
perfection may be reached on earth and beatitude attained in
Paradise. These successive manifestations in the seven spheres of
the planets obviate what might otherwise have proved the monotony
of a single heaven, and suggest that, although each soul partakes
supremely according to its individual capacity of the Beatific Vision,
which is essentially one and the same in all, yet there are not only
grades but subtle differences in the possession of it, in which the life
on earth was a factor. In the eighth, the Stellar Heaven, still under
sensible figures and allegorical veils, Dante sees “the host of the
triumph of Christ, and all the fruit gathered by the circling of these
spheres” (Par. xxiii. 19-21), representing the Church in which these
various modes and degrees of life are brought into unison. In the
ninth, the Crystalline, the angelic hierarchies are manifested with
imagery symbolical of their office towards God and man,
representing the principle of Divine Order, the overruling and
disposition of Divine Providence in which the celestial intelligences
are the agents and instruments. The Empyrean Heaven depicts the
soul in patria, with all the capacities of love and knowledge
actualised in the fruition of the Ultimate Reality, the supreme and
universal truth which is the object of the understanding, the supreme
and universal good which is the object of the will.
 The Angels.—Each of the nine moving spheres is assigned to the
care of one of the nine angelic orders: Angels, Archangels,
Principalities; Powers, Virtues, Dominations; Thrones, Cherubim,
Seraphim. And the character of the blessed spirits that appear to
Dante in each heaven, and the subjects discussed, seem in almost
every case to correspond more or less closely with the functions
assigned by mystical theologians, especially Dionysius, St. Gregory
and St. Bernard, to the special angelic order which presides over the
sphere in question. There are two fundamental principles in the life
of the soul: nature and grace. The one is represented in the Paradiso
by the astronomical order of the heavens and their influence upon
individual disposition, furnishing man with a natural aptitude for the
moral and intellectual virtues; the other by the bounty of Divine
Grace, which reveals itself in the perfecting of the natural and the
infusion of the supernatural virtues, whereby souls become
assimilated to the angelic orders.[37] It is through these Angels (the
name is applied generally to all, as well as to the lowest order) that
God disposes the visible world; in the hands of the celestial
intelligences the heavens are as hammers, to stamp the Divine ideas
upon material creation and carry out the Divine plan in the
government of the Universe (cf. Par. ii. 127-129). And, by means of
the influence of the stars, these Angels have impressed certain men
with their own characteristics; perhaps to fill up the vacant places in
their ranks left by the fall of Lucifer’s followers, certainly to co-
operate on earth in their work. Dante himself was born beneath the
constellation of the Gemini, the glorious stars impregnated with the
virtue of the Cherubim who rule the eighth sphere (Par. xxii. 112-
123). The Cherubim represent the Divine Wisdom; their name
signifies plenitude of knowledge. According to St. Bernard, they
“draw from the very fountain of wisdom, the mouth of the Most High,
and pour out the streams of knowledge upon all His citizens.” Their
special prerogatives are fullness of Divine light, and contemplation of
the beauty of the Divine order of things; they see most into the
profound mysteries of the hidden things of God, and spread the
knowledge of Him upon all beneath them. By their inspiration Dante
co-operated in this cherubical work by writing the Divina Commedia.
The Seraphim especially represent the Divine Love. No soul appears
in the ninth heaven which they guide and in which the angelic
hierarchies are manifested; Beatrice is the sole interpreter between
the poet and the Angels, as she had been the revealer to him on
earth of Love’s “possible divinities and celestial prophecies.”
Time in Paradise.—The action of the Paradiso begins at noon,
immediately after Dante’s return from Eunoë; that is, noon on
Wednesday in Easter week in the Earthly Paradise and (the
following) midnight at Jerusalem (Par. i. 37-45). The time-references
in this third Cantica are rather doubtful (Par. xxii. 151-153, xxvii. 77-
87), but it seems probable that Dante takes twenty-four hours to
ascend through the nine material heavens to the Empyrean, which is
beyond time and space, where “the natural law in nought is relevant”
(Par. xxx. 123). When Dante woke from his “mighty trance” to the
“sound of the importunate earth,” it was perhaps about dawn on the
morning of Friday in Easter week in our world, thus completing the
seven days of his ecstatic pilgrimage, which had begun at about the
same hour on Good Friday.
Canto I.—In a lyrical prologue of stately music (Par. i. 1-36), the
poet sings of the glory of the First Mover, and prays for light and
inspiration to complete this third most arduous portion of his divine
poem. Then, in the noblest season of the year and noblest hour of
the day, as Beatrice gazes upon the sun and Dante upon her, his
mind becomes godlike, and he ascends to Heaven swifter than
lightning. To explain his ascent, Beatrice discourses upon the form
and order of God’s visible image, the Universe; and on His Eternal
Law, the sovereign plan of government existing in the Divine Mind, to
which all movements and actions of nature are subject (ibid. 103-
141). To all created things God has given an instinct, or principle of
inclination, by which, in different ways according to their nature, He
draws them all back to Himself over the great sea of being. Rational
beings alone can resist the order of the Universe and defeat the
Eternal Law by sin, which is expiated by temporary or eternal
suffering, as Dante has seen in the lower realms; but the purified
soul, in accordance with this order and law, inevitably mounts up to
find its rest in union with the First Cause. It is the doctrine of spiritual
gravitation (derived from St. Augustine), according to which the soul
is moved by love as bodies are by their weight, and all things find
their rest in order.
The Heaven of the Moon.—They are received into the eternal
pearl of the Moon (Par. ii.); where Beatrice first confutes Dante’s
former theory concerning the luminous substance of the celestial
bodies, and, by explaining how everything in the visible world
depends upon the angelic movers of the sphere, gives a mystical
interpretation of a natural phenomenon, on this first step of his
ascent to the suprasensible. Within this eternal pearl appear faint but
divinely beautiful forms of women; the souls of those who had
yielded to violence and broken their solemn vow (Par. iii.). Piccarda
Donati, sister of Corso and Forese, sets forth the perfection of
celestial charity, where all wills are made absolutely one with the will
of God, who has awarded different degrees or mansions of beatitude
to all His chosen ones:

E la sua volontade è nostra pace,

“And His will is our peace.”[38] Transfigured now with ineffable joy,
Piccarda tells the pathetic story of her frustrated life on earth; and
points out to Dante the Empress Constance, mother of Frederick II.,
torn, like her, from the convent’s shelter. Beatrice explains to the
poet the place of all the saints in the Empyrean—the “heaven of
humility where Mary is,” as Dante had sung long before of Beatrice
herself in the Vita Nuova—and the reason of this temporary
apparition in the moon (Par. iv.). The other questions solved in this
sphere are all connected with Free Will. Rectitude of will is
necessary for the gaining of Paradise, and nothing whatever can
take away that freedom of the will. “As regards the proper act of the
will, no violence can be done to the will”; and, since Piccarda and
Constance yielded through fear of greater evil, they fell voluntarily
from the state of perfection to which they were called. Freedom of
the will is God’s greatest gift to man (Par. v. 19-24); hence the
sanctity of an accepted vow, wherein this supreme gift is offered to
God as victim, although Holy Church has power to commute, save,