Table of contents:
Element:
P.11. Evidence inferred from an utterance, a document, or a deed.
P.11.1. Evidence of perpetrators participation in the trial.
Trial Of Sergeant-Major Shigeru Ohashi And Six Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 25, at p. 26:
"The accused Ohashi and Komoda, with their superior officer Lt. Yamada, were members of the summary court which convicted the deceased. Ohashi and Komoda also took part in the execution.
A third accused acted as interpreter during the trial and also took part in the execution.
Four other accused were shown to have taken part in carrying out the orders for the execution of the victims, but not to have been present at their trial or to have had any knowledge of the nature of those proceedings.
3. THE FINDINGS AND SENTENCES
Ohashi and Komoda were found guilty and sentenced to life imprisonment.
The other accused were found not guilty.
The two life sentences were commuted to sentences of imprisonment for two years by the Confirming Officer."
Trial Of General Tanaka Hisakasu And Five Others,(United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, p. 66, at. pp. 66, 68:
"1. THE CHARGES
The Charge against General Tanaka Hisakasu was that, as Governor General of Hong Kong and Commanding General of the Japanese 23rd Imperial Expeditionary Army in China, he " did, at Canton, China and/or Hong Kong knowingly, wilfully, unlawfully and wrongfully commit cruel, inhuman and brutal atrocities and other offences against " a named United States Major, " by authorizing, permitting, participating in and approving of the illegal, unfair, false and null trial and the unlawful killing " of the Major, in violation of the laws and customs of war.
Major-General Fukuchi Haruo was charged of violations of the laws and customs of war in that, as Chief of Staff of the Governor General of Hong Kong he " did, at Hong Kong, wilfully, unlawfully and wrongfully commit " offences described in the same manner as those charged against Tanaka.
Lieutenant-Colonel Kubo Nishigai, Major Watanabe Masamori and Captain Yamaguchi Koichi of the Japanese Army of the Governor General of Hong Kong were charged of having " as members of a purported Japanese Military Tribunal," committed offences of the same description at Hong Kong by " acting in, participating in and permitting the illegal unfair false and null trial and the unlawful killing " of the same victim.
Captain Asakawa Hiroshi of the Japanese Army of the Governor General of Hong Kong was charged with committing a violation of the laws and customs of war in that "as Prosecutor of a purported Japanese Military Tribunal " he permitted, prosecuted in and participated in the same illegal trial."
"In a deliberation held after the adjournment, Yamaguchi stated to the other two members of the court that " the facts of crime are clear," that the Major was guilty, and that he interpreted the " Enemy Airmen Act " to require imposition of the death penalty which could be commuted to life imprisonment or more than ten years imprisonment by Tanaka alone. All three judges voted that the Major was guilty and unanimously voted the death penalty, whereupon Yamaguchi prepared the " draft of the verdict " which was announced in open court."
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 63-64
"Isayama, a Lieutenant-General, as Chief of Staff of the 10th Area Army, was in a position to advise Ando, the commander on all matters. His connection with the trials of the American airmen lay in his discussions with the commander and with Furukawa, Chief of the Judicial Department, at the time when the original request for instructions was sent to Tokyo on 14th April, 1945; in his consideration of the charges against the defendants on or about 16th May, 1945; in his discussion with the chief judge and members of the judicial department at the close of the trial on 21st May, 1945; in the preparation of a request to Tokyo for final instructions on 22nd May, 1945; in his receipt and passing on of the instructions received from Tokyo; in his receiving and passing on to the commander the protocol of judgment and order for execution ; in his instruction to Furukawa that the records of trial be filed; and in his instructions to all involved in the trial to state to the Americans as the purported records of trial show.
Furukawa, a Colonel, as chief of the Judicial Department, was shown to have been in a position to influence the actions, not only of his subordinates, but of the other judges on the military tribunal, the chief of staff and the commander, by means of his interpretations of the facts and the law relating to the American airmen. He was the chief prosecutor of the military tribunal. He was absent from his command during the period in which the American airmen were charged and tried, but his instructions relative to the interpretation of the military law and the theory of accomplices as affecting the guilt of all crew members, including radiomen and photographers, were submitted to the tribunal and to the commander by his assistant Matsuo, as he directed. He gave directions to the prosecutors after the Japanese surrender to strengthen the reports of the interrogations.
Ito, a Captain, was a member of the Judicial Department, 10th Area Army. He interrogated two of the victims. He prepared a protocol of judgment on one of the trials, admittedly knowing that the trial was not completed.
3. THE FINDINGS AND SENTENCES
All of the accused were found guilty."
Trial of Captain Eitaro Shinohara and Two Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 32, at pp.33-34:
"A statement by the accused Captain Toyoji Nemoto, which was put in as evidence stated, inter alia :
"When the trial opened Captain Shinohara, Captain Shoji, Sergeant Arai, the two accused and myself were present. We all remained together until sentence had been pronounced. . . . The records of Sgt. Arais and Captain Shinoharas previous investigations were before us. Captain Shoji and I began the trial by asking the natives questions . . . The natives told us that they had led the other villagers into failure to co-operate with the Japanese. The natives said that they realized that they had done wrong in doing so. Captain Shoji and I then decided that both accused were guilty of treason under Rules of Court Martial Procedure, Clause 24 or 25. We decided they should be sentenced to death.
"The offence of which we considered them guilty was treason in that they took up arms against the Japanese. The offence of failure to supply sac sac does not carry a death penalty and we did not convict them of that offence. We told Captain Shinohara of the charges of which we thought they were guilty and the sentence we thought appropriate. He thought for a moment and then said that he agreed with us and sentenced the accused to death. . . .
"The accused had no defending officer or advocate. No witnesses were called at the trial, but documentary evidence of the previous investigations by Captain Shinohara and Sergeant Arai was before the Court. The trial took about four hours. After sentence was pronounced the accused were taken away in custody. A record of the trial was sent to Major General Kawakubo who later confirmed the sentence.
A statement by the accused Captain Takeyasu Shoji included the following words :
"I was sent by Major General Kawakubo to be recorded and observer of a trial of two natives at Branba in May, 1945. . . .
"Members of the court were Captain Shinohara, Captain Nemoto and Sergeant Arai. When the Court opened the two natives were asked questions by Captain Nemoto and Captain Shinohara. I asked no questions as I had no prior knowledge of the facts. . . . The three officers and Sergeant Arai then went into a room. Captain Nemoto and Sergeant Arai conferred and then told me that the accused were guilty of treason under Clause 26 of the Rules of Court Martial Procedure and deserved the death penalty.
Shoji and Shinohara agreed with them."
Trial of Josef Alstotter and Others, UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1,at p. 75:
"Of Rothenberger the Court concluded that: "[ ] He materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system."
P.11.2. Evidence that perpetrator assumed the guilt of accused before commencement of trial.
Trial of Captain Eitaro Shinohara and Two Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 32, at p.33:
"Shinohara stated that, because of his previous investigations, he knew before the trial started that the accused were both guilty, and he did not question them."
P.11.3. Evidence that perpetrators judgment was biased.
A. Legal source/authority and evidence:
Trial Of General Tanaka Hisakasu And Five Others,(United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, p. 66, at. pp. 69:
"Kubo and Watanabe, a Lieutenant Colonel and a Major respectively, were members of the court that sentenced the victim to death but were men of little or no legal training. Kubo had had no previous experience in serving on courts and Watanabe had only once served on a military tribunal previously. It appeared from the evidence that they based their verdict and sentence on the views of Yamaguchi, the law member, and on his interpretation of the law. Nevertheless they were under no compulsion to find the Major guilty and both conceded that they could have voted " not guilty."
A. Legal source/authority and evidence:
Trial Of Sergeant-Major Shigeru Ohashi And Six Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 25, at p. 25:
"No defending officer was provided for the victims ; according to Ohashis evidence this was " in view of the time element, " and the half-caste addressed the Court on behalf of all the accused."
