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HE!\DQUARTEPS EIGHl'H Aw.l
JUDGE ADVOCSrE eECTION
,ilJ,R CRIMES DEFENSE DIVISION
APO
343
m:c-:::SSIT'l FOR PROSECurION
BY INJURED STATE
in behalf of
TESHIH/JlU tXiHIDA
in the case of
UNI'!'ED S~Al'ES OF .'\MERICA
vs
TAKEO Kt.NEI<D ET .t.L
Ca se Dooket No.
i6
1'ried bef ore a
lLppointed by
COMil'~.NDING GEm RAL, T::IGH'rH ARMY
et
Yokohama, Honshu, Japan
5 September 1946 - 14 November 1946
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HEAD<tUARTERS EIGHTH ARMY
Judge Advona te Section
War Crimos Defense Division
APO
343
MEMORANDUM
JURISDICTION 01<1
COMMIS ~ ION
---NECESSITY FOR PROSECUTION
BY INJURED STATE
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It is submitted that the Commisoion was without jurisdiction to try the accused for the offense s alleged in this
case , for the reason that the charge and specifications
allege offenses against individuals not citizens of the
United States and not serving with its armed forces and ,
of course , a t the time of the a lleged commission of the
offe nses not inhabitants of a territory occupied by the
United States.
In some ca ses the .specification s a llege offenses against
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Allied Prisoners of War'1 but the evidence shows that if any
offe nse was comrni tted it was aga inst prisoners not citizens
or soldiers of the United States .
The fundamental purpose of a ll criminal trials is to
dete rmine whether the ri Bhts of one pa rty have been viola ted
by the accused per son.
The pre sent proceeding is brought in
the name of the United States of America and against a Japanese
na tional .
It is true tha t he is cha rged with viola tion of the
laws and custons of war and not with viols tion of the l a ws
of the United St a tes of Ame ric a or aIny of the states composing
the Ame rican Union.
However in orde r for the United Stutes of
America to put the man on tria l ho must be charged with
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violating the law with refe rence to the United States as a
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legal entity or with referonce to a citizen of the United
States.
A violation of law in territory occupied by and
governed by the United Sta tes is an offense againat' the
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United States in its sovereign capacity.
Likewise a vio-
lation of' lnw affecting a citizon of the United States or any
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othe r person nt the time under the protection of the United
.
States may be an offense aga inst the United Stntes r egardless
of the place of the offense.
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Thus an offense against a
foreign na tiona l serving in the United States Army on foreign
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soil may be, in Military l aw, an offense against the United
States.
Until the present War Crimes Trials so far as can be
l e arned no sovereign power sought to punish and try persons
of the defeated nations except for offense s committed against
its own n ationals or soldiers, or offenses committed in occupied territory .
Writers upon inte rnational law and War
Crimes apparently be lieve the law to be as stated herein.
In an article in the Ha rvard Law Review (1942-1943) Volume
56, page 1059, Sheldon Glueck discusses "By wha t tribuna l
shall war offenders be tried."
He suggests that four courts
be used.
1.
Ordinary criminal court.
2.
f.iilitsry Commissions of each n at ion.
3.
Joint Military tribuna l combining the s eparate Militar3
courts of each n a tion.
4.
it
An interna tiona l criminal court .
He sugges t s that the tribuna ls mentioned above a s three and
f our would handle and trys
a.
Offenses by chiefs of state.
b.
Offenses against nationa ls of sevoral countries in
combination.
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In his discussion he says there cnn be (page 1066) "no
objection to American Military Commission taking jurisdiction
over enemy violnters of laws or usages of war whose victims were
American nationals (underscoring added) merely because their
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offenses were committed outside the. actual occupied region. 11
In an article in Yale Review, Volume 32, {1942-1943)
Thomas Raeburn White speaking of the report of the Allied
Cor.nnission recommending procedure for the first world war
trials says (page 715).
"It recited that each belligerent
had the authority to try individuals alleged to have been
guilty of such crimes against lts nationals" (underscoring
added)- .and reconnnending that a joint international tribunal
be set up to try these persons who had been guilty of joint
offenses against more than one power ••• •·•."
If it be contended that the Commissions appointed by the
Commanding
~eneral
of the Eighth Army under delegation of
power from the Supreme Commander of Allied Powers are international tribunals because officers of notions other than the
United States sit upon such Commissions and serve as counsel
there, a complete answer is that an international tribttnal
could not be created by -implication or other than by the
specific authority of the nations participating in the formation of such a tribunal.
In the
pres~nt
caso the officers
of the Allied Powers serving on or with the Commission are
simply detailed for service with the Eighth Ar my just as
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throughout the war officers of the Army of one of the Allies
were repeatedly ordered to serve with tho army of one of the
other allies .
The Commi s sions aro American Military Cor.i-
rnis sion appointed by and responsible to the Commanding Genera l
of the Eighth Army and neither in fact or in law have any of
the functions or responsibility or dutie s of an international
tribunal.
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The objections to the jurisdiction of the present proceeding
is not based primarily upon the powers of the Commission which
might be affected by its character as an American or an international military court but is based upon the lack of jurisdiction of the Commission to try any case hot prosecuted by a
party in interest.
The prosecution in this case is for offenses
committed against nationals of other of the Allied Powers.
It
is believed that the military Connnisaion of the United States
has no power to try an accused for such offenses in any event.
An internationa l tribunal, unless restricted by the agreements
and orders creating it, would have· power to try an accused for
such an offense only if the prosecution were instituted by the
nation injured, that is to say, by the sovereign power the rights
of which were affected by offenses against its citizens or
persons unde r ·its protection.
The rights of the United States of Ame rican were not
violated in international l aw or under its own laws because
a British, Canadian or other Allied prisoner of war was mistreated.
While the United States associated itself with the other
Allied Powe rs in the prosecution of the war it did not assume and
could not assume the duty and r esponsibility of try ing offenses
against the other sovereign powers.
There are cases in which
a p ~rticular 0ffense may be an offense against the l aws of two
powers or an offense against inte rnational law which either
power rnigh t prosecute.
For example, the unlawful abuse of an
American prisoner of war in a Japanese
~rison
canp was an
offense which might be prosecuted by either the Ja panese
Governnent or by the United States of America .
After World
Wa r I the Allied Powers c0nceded that Gerouny conduct the trial
of certain German citizens who were accused of violating the
laws and customs of wa r.
The result of tha t proceedure makes
it highly inprobable that it will eve r be ottcnpted again
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by
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~Ur . c ountry.
If, however, the United Sta tes Government by the
treaty of peace, expected to be made , agr ees tha t the Japanese
Government sha ll try the persons accused of War Crioes there
can be no question about the jurisdiction of the Japanese
c ourt.
In such an event the J apanese Government could prosecute
such offenses in its own name because the act was a violation
of the laws of Japa n a nd of Internationa l law
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applicable to
Japan as well as to interna tiona l l aw as a pplicable to the
United State s.
Blacks' Law Dictionary at page 479 (quoting froo l Bish.
Crim Law, Sect. 43) define s "c rimes" aa be ing those wrongs which
the goverllLlent notices as injuri ous to the public and punishes
in what is called a 'criminal proc eeding' in its own name.
(underscoring added)
It is to be noted that a crime, ac cording to the above
definiti on, roust involve an injury to the public.
·the "publicf"
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What then is
Does "public" nean 1\;he world at l arge 11
hwna ni ty in ge nera l "'l
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No, according to Bla ck's Law Die tionary,
poge 1460, the word "public 11 means "perta ining t o a sta te,
nat ion, or whole comr.lunity 11 , or it r.1eans
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the inhabitants of
a state, county or community ."
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Taking these definitions toge the r i t i s pointed out that a
crime is wrong which a governnent n otices as being injurious
to its
inhab i~ants
own name.
and punishes in a crinina l proceeding in its
In other words a sta t e nay pr osecute an a lleged
crimina l only when its rights ha ve been violated • through a
wrongful injury to one of its inhabitants.
The first published di r ec ti ve
embodied the gener al initial polic y
t~
General
r c l ~ ting
cally nenti0ns the point in questi on.
P.~acA rthur,
t o Jap an, specifi-
This docunent , vklich
wa s prepa r e d jointly by the Departnent of State , tho War
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Deportr.1ont , and the Na vy Departrien t, nnd appr oved by
t~ 1e
President (on Sept 6, 1945) states in Part III, Secti on 2
( \Va r Criminals) s
' "Those wanted by another of the United Wati ons for
offenses aga inst its nationals, sha ll, if not wanted for trial
or as witnesses or otherwise by t he Supreme Cor.1I'.1ander, be
turned over to the custody of such other na tion".
(unde r-
scoring added )
The underlined V1ords i n thi s quotation show definite l y
that the policy of our Government is not to try war crininals
for
o ffe~se s
against the nationals of other countries, but to
turn then over t o such other count r y for
t~1nl.
In some cases Japa nese in tho cu stody of the United States
have been surrendered to other Allied powor s for tri al
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charges of a buse of nati onals .of thoso powors , and have
b een
actually tried by the British and other Allied powers.
Tho conclusion r eached by ·the above c ons ideration is that
the United States was not a proper or conpetent party to the
proceedings in this case and t hat therefor e it should not have
been perr:litted to prosecute t he case .
Thi s being so, the
pr oceedings and the r esultant verdict and sentence agai nst
accused sh ould be set aside .
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