The Laws and Customs of War are established partly by the practice of civilized nations, and partly by Conventions and Assurances, which are either directly binding upon the parties thereto, or evidence of the established and recognized rules. The Conventions and Assurances hereinafter mentioned in any part of this Appendix will be relied upon as a whole for both purposes, only the most material Articles being quoted herein.
Incorporated in Group Three
- The Convention No. 4 done at The Hague on the 18th October, 1907, concerning the Laws and Customs of War on Land provides (inter alia) as follows:
"According to the views of the High Contracting Parties, these provisions, the drafting of which has been inspired by the desire to diminish the evils of war, so far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their relations with the inhabitants.
It has not, however, been found possible at present to concert stipulations covering all the circumstances which arise in practice;
On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in default of written agreement, be left to the arbitrary opinion of military
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."
The Regulations set out in the Annex to the said Convention, which forms part thereof, deal in Section I with Belligerents and Prisoners of War, in Section II with Hostilities and in Section III with Military Authority over the Territory of the Hostile State.
Article 4 thereof in Section I provides (inter alias) as follows:
"Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them."
Convention No. 10 don e at the same time and place concerns Maritime War.
The said Conventions were signed a ratified by or on behalf of over forty nations, including Japan and each of the nations bringing the charges in this Indictment, subject to certain reservations
not here material, and thus became part or evidence of the Laws and Customs of War.
- The more complete code of the Laws of War contemplated by the said Convention is contained, in relation to Prisoners of War, in the International Convention relative to the Treatment of Prisoners of War, done at Geneva, on the 27th July, 1929, (hereinafter called "the Geneva Convention").
Although Japan did not ratify the said Convention, it became binding upon her for one or more of the following reasons:
- It was signed on the said date by or on behalf of forty-seven nations, including Japan and each of the nations bringing the charges in this Indictment, and ratified by over forty nations, and thus became part or evidence of the Laws and Customs of War.
- A communication dated the 29th January, 1942, signed by TOGO, Shigenori, one of the accused, as Foreign Minister on behalf of Japan, addressed to the Swiss Minister in Tokyo, contained the following statement:
"Although not bound by the Convention relative to the Treatment of Prisoners of War, Japan will apply mutatis mutandis, the provisions of that Convention to American prisoners of war."
In a communication dated on or about the
30th January, 1942, addressed to the Argentine Minister in Tokyo by TOGO, Shigenori, one of the accused, as Foreign Minister on behalf of Japan it is stated:
"The Imperial Government has not yet ratified the Convention of 27th July, 1929, regarding the treatment of prisoners of war. They are not therefore subject to the said Convention. None the less, they will apply mutatis mutandis the conditions of that Convention to English, Canadian, Australian and New Zealand prisoners of war in their power. With regard to supply of food and clothing to prisoners of war, they will consider on condition of reciprocity national and racial customs of the prisoners."
By the said communications or one of them, Japan acceded to the said Convention in accordance with Article 95 thereof, and the state of war then existing gave immediate effect to such accession.
The said communications constituted assurance to the United States of America, the United Kingdom of Great Britain and northern Ireland, Canada, Australia and New Zealand to whose governments the said communications were intended to be, and were, repeated by the respective recipients thereof, and in each case to all nations who were at war
with Japan.Except in the said matters there are no provisions of the said Geneva Convention to which the expression "mutatis mutandis" could properly be applied.
- The International Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, done at Geneva on the 27th July, 1929, (known as and hereinafter called 'the Red Cross Convention') provides (inter alia) as follows:
"Article 26: The Commanders-in-Chief of belligerent armies shall arrange the details for carrying out the preceding articles as well as for cases not provided for in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention."
Japan was a party to the said Convention, together with over forty other nations, which thus became part or evidence of the Laws and Customs of War. In the above-mentioned communication dated on or about the 29th January, 1942, Japan stated:
"Japan observes strictly the Geneva Convention of 27th July, 1929,. relative to the Red Cross, as a state signatory of that Convention."
A communication dated the 13th February, 1942,
signed by TOGO, Shigenori, one of the accused, as Foreign Minister on behalf of Japan, addressed to the Swiss Minister in Tokyo, contained the following statement:
"The Imperial Government will apply during the present war, on condition of reciprocity, the provisions relative to the treatment of prisoners of war of the 27th July, 1929, to enemy civilian internees, as far as applicable to them, and provided that labour will not be imposed upon them contrary to their free choice."
The said communication constituted an assurance to all the nations at war with Japan, (who in fact carried out the provisions of the said Convention as applicable to Japanese civilian internees) other than the Republic of China.
The above-mentioned assurances were repeated by the Japanese Foreign ministry on several occasions, as recently as the 26th May, 1943.
All the offences are breaches of the Laws and Customs of War, in addition to, and as proved in part by, the several Articles of the Conventions and assurances specifically mentioned.
Particulars of Breaches
Inhuman treatment, contrary in each case to Article 4 of the said Annex to the said Hague Convention
and the whole of the said Geneva Convention and to the said assurances. In addition to the inhumane treatment alleged in Sections Two to Six hereof inclusive, which are incorporated in this Section, prisoners of war and civilian internees were murdered, beaten, tortured and otherwise ill-treated, and female prisoners were raped by members of the Japanese forces.
Illegal employment of prisoner of war labour, contrary in each case to Article 6 of the said Annex to the said Hague Convention and to Part III of the said Geneva Convention, and to the said assurances. The said employment was illegal in that:
- prisoners of war were employed no work having connection and direction connection with the operations of war.
- 'prisoners of war were employed on work for which they were physically unsuited, and on work which was unhealthy and dangerous.
- the duration of daily work was excessive, and prisoners were not allowed rests of twenty-four consecutive hours in each week.
- conditions of work were rendered more arduous by disciplinary measures.
- prisoners were kept and compelled to work in unhealthy climates and dangerous zones, and without sufficient food, clothing or boots.
Refusal and failure to maintain prisoners of war, contrary to Article 7 of the said Annex to the said Hague Convention, and Article 4 and Part III, Articles 9-12 inclusive, of the said Geneva Convention, and to the said assurances.
Owing to differences of national and racial customs, the food and clothing supplied to the Japanese troops were, even when supplied to prisoners of war belonging to the white races, insufficient to maintain them. Adequate food and clothing were not supplied, either in accordance with the said Conventions or the said assurances.
The structural and sanitary condition of the camps and labour detachments failed entirely to comply with the said Articles and was extremely bad, unhealthy and inadequate.
Washing and drinking facilities were inadequate and bad.
Excessive and illegal punishment of prisoners of war, contrary to Article 8 of the said Annex to the said Hague Convention and to Part III, Section V, Chapter 3 of the said Geneva Convention, and to the said assurances:
- Prisoners of war were killed, beaten and tortured without trial or investigation of any kind, for alleged offences;
- such unauthorized punishments were inflicted for alleged offences which, even if
proved, were not under the said Conventions offences at all;
- collective punishments were imposed for individual alleged offences;
- prisoners were sentenced to punishment more severe than imprisonment for thirty days for attempting to escape;
- conditions of the trial of prisoners did not conform to those laid down in the said Chapter;
- conditions of imprisonment of prisoners sentenced did not conform to those laid down in the said Chapter.
Mistreatment of the sick and wounded, medical personnel and female nurses, contrary to Articles 3, 14, 15 and 25 of the said Geneva Convention and Articles, 1, 9, 10 and 12 of the said red Cross Convention, and to the said assurances:
- Officers and soldiers who were wounded or sick, medical personnel, chaplains, and personnel of voluntary aid Societies were not respected or protected, but were murdered, ill-treated and neglected;
- medical personnel, chaplains and personnel of voluntary aid Societies were wrongfully retained in Japanese hands;
- female nurses were raped, murdered and ill-treated;
- camps did not possess infirmaries, and
seriously sick prisoners and those requiring important surgical treatment were not admitted to military or civil institutions qualified to treat them;
- monthly medical inspections were not arranged;
- sick and wounded prisoners were transferred although their recovery was prejudiced by their journeys.
Humiliation of prisoners of war, and especially officers, contrary to Article 8 of the said Annex to the said Hague Convention, and Articles 2, 3, 18, 21, 22 and 27 of the said Geneva Convention, and to the said assurances:
- Prisoners were deliberately kept and made to work in territories occupied by Japan, for the purpose of exposing them to the insults and curiosity of the inhabitants;
- prisoners in Japan and in occupied territories, including officers, were compelled to work on menial tasks and exposed to public view;
- officer prisoners were placed under the control of non-commissioned officers and private soldiers and compelled to salute them, and to work.
Refusal or failure to collect and transmit
information regarding prisoners of war, and replies to enquiries on the subject, contrary to Article 14 of the said Annex to the said Hague Convention and to Articles 8 and 77 of the said Geneva Convention, and to the said assurances:
Proper records were not kept, nor information supplied as required by the said Articles, and the most important of such records as were kept were deliberately destroyed.
Obstructions of the rights of the Protecting Powers, of Red Cross Societies, or prisoners of war and of their representatives, contrary to Article 15 of the said Annex to the said Hague Convention, and to Articles 31, 42, 44, 78 and 86 of the said Geneva Convention, and to the said assurances:
- The representatives of the Protecting Power (Switzerland) were refused or not granted permission to visit camps and access to premises occupied by prisoners;
- when such permission was granted they were not allowed to hold conversation with prisoners without witnesses or at all;
- on such occasions conditions in camps were deceptively prepared to appear better than normal, and prisoners were threatened with punishment if they complained;
- prisoners and their representatives were not allowed to make complaints as to the
nature of their work or otherwise, or to correspond freely with the military authorities or the Protecting Power;
- Red Cross parcels and mail were withheld.
Employing poison, contrary to the International Declaration respecting Asphyxiating Gases signed by (inter alia) Japan and China at The Hague on the 29th July, 1899, and to Article 23(a) of the said Annex to the said Hague Convention, and to Article 171 of the Treaty of Versailles:
In the wars of Japan against the Republic of China, poison gas was used. This allegation is confined to that country.
Killing enemies who, having laid down their arms or no longer having means of defence, had surrendered at discretion, contrary to Article 23(c) of the said Annex to the said Hague Convention.
Destruction of Enemy Property, without military justification or necessity, and pillage, contrary to Articles 23(g), 28 and 47 of the said Annex to the said Hague Convention.
Failure to respect family honour and rights, individual life, private property and religious
convictions and worship in occupied territories, and deportation and enslavement of the inhabitants thereof, contrary to Article 46 of the said Annex to the said Hague Convention and to the Laws and Customs of War:
Large numbers of the inhabitants of such territories were murdered, tortured, raped and otherwise ill-treated, arrested and interned without justification, sent to forced labour, and their property destroyed or confiscated.
Killing survivors of ships sunk by naval action and crews of captured ships, contrary to Article 16 of Hague Convention No. 10 of 1907.
Failure to respect military hospital ships, contrary to Article 1 of the last-mentioned Convention, and unlawful use of Japanese hospital ships, contrary to Articles 6 and 8 thereof.
Attacks, and especially attacks without due warning, upon neutral ships.
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