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Precedent and Politics:

Dutch-American Relations at the International Military Tribunal

for the Far East

Liesa A. Abel liesa.abel@student.uva.nl Student number: 11598875 Master’s Thesis: Universiteit van Amsterdam History: Holocaust and Genocide Studies Supervisor: Prof. dr. Johannes Houwink Ten Cate Second Reader: Dr. Thijs Bouwknegt November 2018

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Table of Contents ... 1

Abstract ... 2 Introduction ... 3 Chapter 2: Historiography ... 11 Chapter 3: Precedents for Modern International Law, Japanese War Crimes in the Netherlands East Indies………..29 Chapter 4: Denial of Responsibility and the Death Penalty: Atrocities in Nanking……….………44 Chapter 5: Crimes in Manchuria.……….55 Conclusion………...……66 Bibliography………...74

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Abstract:

This thesis examined a different type of diplomacy at the International Military Tribunal for the Far East (IMTFE): that among legal professionals present at the IMTFE, rather than among heads of state and career diplomats. This thesis addressed the following: What was the status of Dutch-American relations at the International Military Tribunal for the Far East (IMTFE)? And how did these relations affect the trials and their outcomes? This work investigated this through case studies of trials conducted in three IMTFE locations: Nanking, Manchuria, and Batavia (modern- day Jakarta). Dutch-American relations often occurred in the form of cooperation, primarily information sharing. Their direct impacts on the proceedings were limited in quantity; however they were noteworthy, such as Justice B.V.A. Röling’s dissenting opinion in the HIROTA case. Additionally, there were indirect, yet significant long-term effects on international law. This included the eventual creation of the International Criminal Court, adaptations to Dutch law that increased prosecutions at trials in Batavia, and the precedent set by the WASHIO case.

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Introduction:

In a September 1947 transcript from the Tokyo Trials, page 22 discussed the transfer of evidence from the Dutch representatives to the Americans. This issue was so controversial that it required discussion, including the Dutch justice, Bernard Victor Aloysius (B.V. A.) Röling and Dutch associate prosecutor Maj. W. G. Frederick Borgerhoff-Mulder.1 The Americans perceived that the Dutch were withholding “written interrogatories”2 from the Americans, when in fact there was a difference in legal procedure causing a delay. This resulted in a misunderstanding between the two groups; however, it was quickly explained and resolved, when the president of the Tribunal, Australian Justice Webb stated he “will insist upon the Dutch methods being adopted on every occasion so far as the taking of evidence in the Netherlands East Indies is concerned.”3 This quote impacted the trials in the Netherlands East Indies (NEI), as well as those taking place in Tokyo. This incident clearly displayed how closely the national representatives at the ITMFE worked together, as well as how their relationship and broader diplomacy may have had an impact on the proceedings and their outcomes. This was a small misunderstanding that showed one of the many difficulties of the Tokyo IMT—Nuremberg’s Pacific Theater counterpart—accounting for significant cultural, language, and legal differences among the nations present. This occurrence 1 “Maj-Gen. W. G. Frederick Borgerhoff-Mulder,” People, International Military Tribunal for the Far East Digital Collection, University of Virginia School of Law, 2 “Court Proceeding,” 20, Box 5, Folder 5,Tavenner Papers and IMTFE Official Records, International Military Tribunal for the Far East Digital Collection, University of Virginia School of Law, http://imtfe.law.virginia.edu/collections/tavenner/5/5/court-proceeding. 3 Ibid. 22.

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raised concern over intercultural communication and diplomacy and how they may have affected the IMTFE proceedings and outcomes. The International Military Tribunal for the Far East (IMTFE)4 was a massive operation. It was centered at Tokyo, with the trials of 27 defendants,5 to be referred to in this thesis as the Tokyo International Military Tribunal (IMT). The Tokyo IMT was the Pacific theater counterpart to Nuremberg, albeit with a few differences. In Nuremberg, there were four, broad counts; while in Tokyo, there were 55. In Nuremberg, the proceedings were significantly shorter and more centralized, as opposed to the IMTFE, which broadly included trials in Tokyo, and individual trials at many locations throughout Asia. This thesis asks: What was the state of Dutch-American relations at the IMTFE and what effect(s) did these have on the proceedings and outcome? This paper will seek to answer this question through a number of case studies. The chapters will correspond to the location in which the defendants’ crimes were committed. There is some overlap, however it will focus on the defendants’ crimes in the locations mentioned in the chapter. It is also important to note that for Japanese actors, last (family) names will be written first, in all capitalized letters, so as not to be confused with others written in the Western style, with personal name, then family name. 4 The IMTFE is also commonly referred to as the Tokyo Trials, not to be confused with the Tokyo International Military Tribunal (IMT), which served as a focal point for the broader IMTFE (or Tokyo Trials). 5 “People,” International Military Tribunal for the Far East Digital Collection, University of Virginia Law School, http://imtfe.law.virginia.edu/people.

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The thesis contains three chapters named for locations of crimes: Manchuria, Nanking, and the Netherlands East Indies. Each chapter discusses 3-5 case studies named for the defendant, and the Dutch-American relations that occurred within their respective contexts as a way of examining Dutch-American relations at the IMTFE, while still focusing on important details of each case study. The source base is rather broad, utilizing multiple collections from the International Military Tribunal for the Far East Digital Collection from the University of Virginia School of Law, the 402_ENG International Military Tribunal for the Far East: papers from the International Prosecution Section, Netherlands Division, and judge B.V.A. Röling collection from the Netherlands Institute for War, Holocaust, and Genocide Studies (NIOD), and the ICC Legal Tools Database. For the chapter discussing crimes committed in the NEI, Fred L. Borch’s 2017 monograph, Military Trials of War Criminals in the Netherlands East Indies 1946-1949, provided detailed, English- language case information from the proceedings in the NEI. There were a number of significant historical events and documents that led to the idea and implementation of the IMTFE, which will be briefly discussed here. The Potsdam declaration was created at the Potsdam conference, where Soviet leader Joseph Stalin, British Prime Minister Winston Churchill, and American President Harry Truman met 17 July-2 August 1945, to “continue” discussions of the post-war world from the Yalta conference earlier that year.6 This led to the Potsdam Declaration, known for its discussion of postwar Germany as well as its “Proclamation Defining terms for Japanese Surrender,” which called for 6 “The Potsdam Conference, 1945,” U.S. Department of State, Office of the Historian, https://history.state.gov/milestones/1937-1945/potsdam-conf.

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“unconditional surrender…the alternative for Japan is prompt and utter destruction.”7 The Potsdam declaration also called for adherence to the 1943 Cairo declaration, which resolved to end the war, by calling on unconditional Japanese surrender and forfeiture of the territory gained during the war.8 The Treaty of San Francisco, signed on 8 September 1951, officially set Japan as a “sovereign”9 equal to the Untied States, and served as a Treaty of Peace between the two nations.10 These documents set the stage for the IMTFE, and the Treaty of San Francisco officially ended this period, and resumed relatively normal diplomatic relations between the U.S. and Japan. Compared to its counterpart at the Nuremberg IMT, the indictment for the Tokyo IMT is significantly more detailed—it listed 55 counts. These counts were split into three groups. The first group, Crimes Against Peace, included counts 1-36; the second group was Murder, counts 37-52. The third group included Conventional War Crimes and Crimes Against Humanity in counts 53-55.11 7 “A Decade of American Foreign Policy 1941-1949 Potsdam Conference,” The Berlin (Potsdam) Conference, July 17-August 2 1945 (a) Protocol of the Proceedings, August 1, 1945, The Avalon Project, Lillian Goldman Law Library, http://avalon.law.yale.edu/20th_century/decade17.asp. 8 “Cairo Conference 1943,” The Avalon Project, Lillian Goldman Law Library, http://avalon.law.yale.edu/wwii/cairo.asp. 9 “No. 1832. Treaty of Peace with Japan. Signed at San Francisco, on 8 September 1951,” United Nations- Treaty Series, 47, https://treaties.un.org/doc/publication/unts/volume%20136/volume-136-i-1832-english.pdf. 10 Ibid. 49. 11 “Full Indictment,” 7, Box 1, Folder 3, G. Carrington Williams Papers, University of Virginia School of Law, The International Military Tribunal for the Far East Digital Collection, 1-15, http://imtfe.law.virginia.edu/collections/carrington-williams/1/3/full-indictment.

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Generally, the term IMTFE is used to refer to all war crimes that took place in the Pacific theater of Japanese war criminals after the end of the Second World War, and included the trials in Tokyo. The basic breakdown of the defendants is the Class A, major criminals, who were tried at the Tokyo IMT. The class B and C war criminals were tried in various locations throughout Asia in each respective nation’s trials of Japanese war criminals. These trials include, but are not limited to trials held in: Batavia (modern day Jakarta), and multiple locations in China, including Manchuria. The main and central trials took place in Tokyo. The Tokyo IMT was primarily an American-run operation, with significant input and participation from other Allied nations. There were 11 justices at the Tokyo IMT, one from each of the Allied nations, plus those from nations that were victims of Japanese war crimes, including China and the Philippines. The Allied Justices were William Flood Webb (Australia, President of the Tribunal), B.V. A. Röling (Netherlands), Henri Bernard (France), Harlan F. Stone (USA), Myron Cady Cramer (USA), John Patrick Higgins (USA, but was replaced by Cramer in July 1946), Edward Stuart McDougall (Canada), Erima Harvey Northcroft (New Zealand), William Donald Patrick (United Kingdom and Northern Ireland), Ivan Micheyvich Zaryanov (Soviet Union), and Radhabinod Pal (British India).12 Those from states victimized included Delfin Jaranilla (Philippines) and Ju-ao Mei (China).13 The Tokyo IMT judgment was released on 4 November 12 “People,” International Military Tribunal for the Far East Digital Collection, University of Virginia Law School, http://imtfe.law.virginia.edu/people 13 Ibid.

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1948.14 There was significant rife among the justices regarding guilt of the accused and legitimacy of the trial. As a result, Justices Bernard, Pal and Röling submitted their own, dissenting judgments in addition to the official judgment.15 The focus of this thesis is on Dutch-American relations at the IMTFE and the Tokyo IMT. Generally, this thesis has been limited in scope by a few parameters. The first is language: this study has relied exclusively on English-language sources, and may be impacted as a result, however, this may also be accounted for by the fact that much of the communication between Dutch and American representatives in Tokyo was conducted in English. Due to the volume of records of the IMTFE, the parameters were limited to 1946-1950, and will examine only a small selection of case studies. The trials of Japanese war criminals began in Tokyo; however, this thesis will examine defendants whose crimes were committed in Nanking, Manchuria, and the NEI, each location corresponding to each major chapter. Through my examination of Dutch-American relations, this thesis aims to unveil a unique diplomatic and legal history on an understudied and significant contributor to modern international law. The Second World War brought an end to American isolationism and Dutch neutrality.16 E.H. van der Beugel argued in his article that it was within the United 14“Indictment for the IMTFE,” http://werle.rewi.hu-berlin.de/tokio.pdf. 15“Separate Opinions of the Justices,” Justice Erima Harvey Northcroft Tokyo War Crimes Trial Collection, University of Canterbury, https://www.canterbury.ac.nz/library/search-our-collections/archives-collection/war-crimes/opinions/. 16 Alfred van Staden, “ American-Dutch Political Relations Since 1945: What Has changed and Why?” BMGN: Low Countries Historical Review 97, no. 3, (1 January 1982): 471.

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States’ best interest to help Western Europe; however, the Marshall plan was also motivated by generosity.17 The Netherlands was the fifth largest recipient of Marshall plan funding, and the largest per capita, at 1.1 billion dollars (in 1947).18 Alfred van Staden argued from the standpoint of Dutch views of the United States, that American-Dutch relations were strong in the immediate aftermath of the Second World War—the Netherlands was considered a loyal ally; this however later devolved into a reluctant one in the aftermath of disagreements on colonialism of Indonesia and US involvement in Vietnam, but still an alliance nonetheless.19 Van Staden also stated “beyond doubt” that the 1950s and 1960s the Dutch attitude toward the United States was one of outright “loyalty and faithfulness, if not docility.”20 This loyalty, according to van Staden, was characterized by respect for the country whose aid the Netherlands were dependent upon for their “continued existence.”21 Post-war American-Dutch relations provided important context for IMTFE and the role of Dutch-American relations and their impact of their relations. Current literature on the IMTFE has attempted to address its entirety—an immense task. There is however, some literature that focuses on IMTFE proceedings specifically in Tokyo, the Netherlands East Indies, or China. This thesis used a sampling of case studies to discuss relations among representatives from two Allied nations at the IMTFE in order to examine what, if any, effects there were on the 17 E. H. van der Beugel, “An Act Without Peer: The Marshall Plan in American-Dutch Relations,” BMGN: Low Countries Historical Review 97, no. 3 (1 January 1982): 460. 18 Ibid. 464. 19 Alfred van Staden, “ American-Dutch Political Relations Since 1945: What Has changed and Why?” BMGN: Low Countries Historical Review 97, no. 3, (1 January 1982): 470-471, 473, 476-477. 20 Ibid. 476-477. 21 Ibid. 478.

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outcome of the proceedings. Alfred van Staden, Arthur Comyns-Carr, and Frances Gouda all discussed Dutch-American relations after the Second World War; however, this work examines such relations at the level of legal professionals working toward obtaining justice for war crimes. There is no prior literature which discusses international relations among legal professionals at the IMTFE, and what this type of diplomacy means for international law and future diplomatic relations between the United States and the Netherlands. This paper surveyed the specific details of each case study to determine what the relations between the US and the Netherlands were, and if and how they affected the proceedings and their outcome. Specifically, this thesis asks: What was the state of Dutch-American relations at the IMTFE? And what, if any, impact did they have on the proceedings and their outcomes? Among the cases examined Dutch-American interaction is limited in quantity, but when present was significant. Except for those trials that took place in Batavia, it was primarily Justice Röling’s input that consisted the majority of Dutch-American interaction that impacted the proceedings and results of the IMTFE. For most of the trials, there was significant input from the Americans, with the consideration of representatives from the 10 other nations the Justices represented. This thesis will now explore these concepts more in-depth, beginning with a historiographical review of the current and past important literature on the IMTFE and examination of the case studies in three locations: Tokyo, Manchuria, and Nanking.

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Chapter 2: Historiography

The Tokyo trials are a broad example of post-war justice. This thesis seeks to examine the role of Dutch-American relations at the IMTFE in the context of the trials in China, Tokyo, and Indonesia. In a brief glance over current scholarship, there is a significant amount of literature on the Nuremberg Trials, as well as the Tokyo trials in relation to their European counterparts in Nuremberg. There is limited scholarship on the Tokyo trials, and this thesis seeks to uncover a diplomatic and legal history of two Allied nations in the wake of Japanese war crimes and how this may have impacted the justice achieved during the IMTFE. According to a 1947 article titled New Trends in Dutch Foreign Policy, Dutch foreign relations both within and outside of the Netherlands Commonwealth has changed. There was a contemporary shift away from prior neutrality, discussion of annexing portions of Germany, and loosening of colonial authority on the Dutch East Indies.22 In keeping with a “strong tradition of tolerance,”23 they have declined the opportunity to annex portions of Germany, and engaged in discussion of granting the Dutch East Indies “equal status” in the Netherlands Commonwealth.24 H. Arthur Stiener’s article, Post-War Government of the Netherlands East Indies, examined the government of the NEI at the end and immediately after the end of the Second World War, and the contributing roles of the United States and the 22 J. Barents, “New Trends in Dutch Foreign Policy,“ Foreign Affairs 25, no. 2 (January 1947): 328-333. 23Ibid. 329. 24 J. Barents, “New Trends in Dutch Foreign Policy,“ Foreign Affairs 25, no. 2 (January 1947): 328-333.

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Kingdom of the Netherlands.25 It also portrayed the complex nature of the growing independence of the NEI from Dutch rule and its eventual full independence. This article spoke to the contemporary political conditions in the aftermath of WWII— chaotic and inconsistent, amid a growing nationalist movement. British Associate Prosecutor26 A. S. Comyns-Carr published a contemporary article in May 1949, in which he gave a brief history of events in the Pacific theater including the Mukden Incident and the attack on Pearl Harbor, reflected on the unprecedented nature of the Tokyo IMT, basic facts of the trial, and how it differed from its counterpart in Nuremberg. In this piece, he argued that the Tokyo IMT made “legal history.”27 This source is unique because it provides historical context to the Tokyo IMT less than one year after the reading of the judgment in November 1948. It has served as a source of comparison between the IMTs at Nuremberg and Tokyo, and as a contemporary source to introduce the topic and its unprecedented nature in this thesis study. Richard Minear’s Victor’s Justice was one of the earliest and most well known scholarly works on this topic. It was highly critical of the trials, aiming to “challenge this prevailing image of the trial, to demolish the credibility of the Tokyo Trial and its verdict.”28 Minear noted that his was a work of “political scholarship,”29 that his 25H. Arthur Steiner, “Post- War Government of the Netherlands East Indies,” The Journal of Politics 9, no. 4, (Nov. 1947): 627. 26“Sir Arthur Strettel Comyns Carr,” The International Military Tribunal for the Far East Digital Collection, University of Virginia School of Law, http://imtfe.law.virginia.edu/contributors/arthur-strettell-comyns-carr. 27 A. S. Comyns-Carr, The Tokyo War Crimes Trial, Far Eastern Survey vol. 18, no. 10, (May 18, 1949): 109. 28 Richard Minear, Victor’s Justice: The Tokyo War Crimes Trial, (New Jersey: Princeton University Press, 1972): ix.

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book was written for an American audience, while recognizing that Japanese scholars believe in the validity of the trials.30 Minear’s book serves as a focal point for the historiography, as it represents a central debate regarding the function of the IMTFE: its role as justice for the victims or for the victors. Donald M. McKale’s 1977 article, The Nazi Party in the Far East, 1931-1945, argued that Nazi penetration of East Asia was an understudied topic, and that two important aspects of Hitler’s policy toward the Far East were his racial ideology and the Nazi party’s use of German communities in China, Japan, India, Australia, and the Dutch East Indies as pawns of German policy.”31 This article brought a unique perspective to the scholarship used in this thesis because it connected the two theaters of the Second World War outside of the comparison between post-war trials at Nuremberg and the IMTFE. Two years later, Philip R. Piccigallo’s The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951. Piccigallo’s work was certainly ambitious, providing a comprehensive overview and account of the IMTFE. He stated in the introduction that his book was intended to show that the Japanese committed war crimes and that the Allied nations held them responsible.32 Piccigallo mentioned the difficulty of writing about the IMTFE, the vast amount of documentation, translation difficulties from Japanese to English, and the 29 Ibid. xiii. 30 Ibid. ix. 31 Donald M. McKale, “The Nazi Party in the Fast East, 1931-45,” Journal of Contemporary History 12, no. 2 (1977): 291. 32 Philip Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East 1945-1951, (Austin: University of Texas Press, 1979): xii.

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fact it was an “uncomfortable” and “political” topic.33 Piccigallo argued that a comprehensive analysis will “give clearer and more accurate understanding of how and why postwar international relations in the East developed or degenerated as they did in the succeeding years will emerge.”34 Dutch scholar Alfred van Staden’s findings on changes in post-Second World War Dutch- American relations argue that American- Dutch estrangement has grown since the 1960s, “is being muted and disguised by the polished language of official diplomacy,” and predicted a “dangerous” future for the Netherlands and the United States.35 Arnold C. Brackman’s 1987 book, The Other Nuremberg examined the Tokyo trials in relation to those in Nuremberg.36 It was written from an American perspective, the author is American and was a correspondent at the Tokyo Trials. The prose was focused on chronology, with a few anecdotes from the author’s time in Tokyo and was more chronological rather than argumentative.37 Brackman stated that he intended for his book to serve as an expose, to “set the record straight,” for what happened at the Tokyo Trials.38 For the purposes of this thesis, it provided factual information related to the trials in Tokyo, and a reference to earlier works on 33 Richard Minear, Victor’s Justice: The Tokyo War Crimes Trial, (New Jersey: Princeton University Press, 1972): xiv. 34 Philip Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East 1945-1951, (Austin: University of Texas Press, 1979): xiii. 35 Alfred van Staden, “ American-Dutch Political Relations Since 1945: What Has changed and Why?” BMGN: Low Countries Historical Review 97, no. 3, (1 January 1982): 470. 36 Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trial, (New York: Morrow, 1987). 37 Ibid. 38 Ibid. 27.

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the topic. Most notably, the book was published in 1987, before there was a significant amount of publications on this topic. Another unique piece of literature regarding the IMTFE was The Tokyo Trial and Beyond: Reflections of a Peacemonger by B.V. A. Röling and Antonio Cassese. It detailed Cassese’s extended interview of Röling in the 1970s but was not published until 1993, eight years after Röling’s death.39 This is an interesting source because it has served as both primary and secondary sources for this thesis. It would be a primary source because it is an interview with Justice Röling, but also secondary because the interview was conducted decades after the trial ended. It can give a (more) candid view of a Dutch official in Tokyo. This made an interesting contribution to the literature presented in this because it connected the facts, narratives and Röling’s experiences in Tokyo with the effects of the relations between Dutch representatives and that of other Allied Nations. Cassese’s interviews with Röling suggest that Röling had significant dissention from the other justices in Tokyo, and are unique because they provide a very reflective view of Röling’s experiences at the IMTFE. In an article a few months before the 50th anniversary of the Tokyo IMT judgment, the Washington Post discussed Hiroshi OSHIMA as an “unwitting spy” for the United States.40 OSHIMA was a “confidante” of German leaders and passed 39 B.V.A. Röling, Ed. By Antonio Cassese, The Tokyo Trial and Beyond: Reflections of a Peacemonger, (Cambridge, Polity Press, 1993). 40 Charles Fenyvesi, “Japan’s Unwitting D-Day Spy,” The Washington Post, 26 May 1998, https://www.washingtonpost.com/archive/politics/1998/05/26/japans- unwitting-d-day-spy/9309f2b9-dd69-4ee3-8eaf-b9b4754631d8/?noredirect=on&utm_term=.35836461d94f.

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information on to American authorities in the months leading up to the invasion of Normandy via the Foreign Office in Tokyo.41 This source did not directly pertain to his criminal case at the IMTFE; it does provide a slightly different narrative of his wartime role, as well as outline the state of memory of the IMTFE in modern Japan. One of the most important sources to be examined in this chapter is The Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East with an Authoritative Commentary and Comprehensive Guide, with an Introduction by R. John Pritchard. This book is a guide to looking at the transcripts, with some included background information its introduction. In Pritchard’s introduction, he aimed to make the resources of the IMTFE known and accessible to all types of researchers, including students, government officials and lawyers.42 Pritchard stated that he found it “regrettable” that previous works on war crimes did not address their respective historical contexts.43 He also made the important distinction between historians and lawyers, an often-missing yet fundamental point in addressing legal- historical events. “The historian, in a somewhat different manner than a pure lawyer, must distinguish between two aspects of the proceedings: firstly, the integrity of the trial process…secondly, the substantive issues and the evidence which revolve around that process.”44 Pritchard’s book 41 Ibid. 42 R. John Pritchard, The Tokyo Major war Crimes Trial; The Records of the International Military Tribunal for the Far East with an Authoritative Commentary and Comprehensive Guide, With an Introduction by R. John Pritchard, (Lewiston, N.Y: Published for the Robert M.W. Kempner Collegium by E. Mellen Press, 1998): xviii. 43 Ibid. xxii. 44 Ibid. xxii-xxiii.

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served as a reference text for the Tokyo Tribunal transcripts, in an attempt to make it more accessible and thus increase scholarship. According to Judgment at Tokyo, American history professor45 Timothy Maga argued that the Tokyo trials were more complex than the usual “victor’s justice” or “doing the right thing” sound bites.46 Maga also argued there were “good intentions” behind the trials, and that “the commitment to justice was firm, although the trial effort itself was beset with problems and controversies.”47 Maga stated in the book that his aim was to familiarize the reader with the basic facts and results of the trials, the “drama of the period,” and examine the controversies and legacies that live on today.”48 This book was written in 2001, and balanced the Victor’s Justice motive with the modern trend in scholarship toward reevaluating the true significance of the proceedings at Tokyo. Maga’s Judgment at Tokyo is unique because he acknowledges the complex nature of the events and subsequent scholarship surrounding the trials leading up until the book’s publication in 2001.49 Timothy Brook’s article, “The Tokyo Judgment and the Rape of Nanking,” took a more neutral stance on the IMTFE’s role in shaping the narratives of Nanking. It argued it is controversial in shaping the identities of both China and Japan,50 and that the “Tokyo judgment might move both sides away from resting their arguments 45 “Timothy P. Maga,” Ohio University Press, https://www.ohioswallow.com/author/Timothy+P+Maga. 46 Timothy Maga, Judgment at Tokyo: The Japanese War Crimes Trials (Lexington: The University Press of Kentucky, 2001), ix. 47 Ibid. ix. 48 Ibid. xii. 49 Ibid. x-xi. 50 Timothy Brook, “The Tokyo Judgment and the Rape of Nanking,” Journal of Asian Studies 60, no. 3 (Aug. 2001): 673.

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on the IMTFE and toward exploring other means of coming to terms with their differences.”51 Brook argued that the Rape of Nanking is a controversial identity marker for japan and China, as well as Japan’s status as a colonial power.52 Brook’s article focused on one event—the Rape of Nanking, and how proceedings related to it at the IMTFE impacted post-war diplomacy. Frances Gouda wrote a more narrowly focused book published in 2002, which revisited Dutch-American relations after the end of the Second World War. In American Visions of the Netherlands East Indies/Indonesia: US Foreign Policy and Indonesian Nationalism, 1920-1949, this Dutch- American diplomatic history provided a basic background history on Dutch-American diplomacy from the inter– war until the postwar period, and provided context for post-war diplomacy. It argued that there was a shift of American position from strong support of the NEI as a Dutch colony to supporting its Independence. 53 Yuma Totani’s 2008 book, titled The Tokyo War Crimes Trials will also serve as another central piece of literature related to this thesis. Totani stated “the Japanese people today regard the Tokyo trial as focal point of World War II.”54 The book explored the trials thematically, as opposed to earlier, chronological works.55 Neil Boister and Robert Cryer’s 2008 book, The Tokyo International Military Tribunal: A Reappraisal, was appraised as a “nuanced analysis of the legal issues” of 51 Ibid. 674. 52 Ibid. 673. 53Frances Gouda and Thijs Brocades Zaalberg, American Visions of the Netherlands East Indies/Indonesia: US Foreign Policy and Indonesian Nationalism, 1920-1949, (Amsterdam: Amsterdam University Press, 2002), 17. 54 Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II, Cambridge, Massachusetts, Harvard University Press, 2008), 1. 55 Ibid. 6.

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the IMTFE.56 In their book, Boister and Cryer provided the in-depth legal analysis, but also argued that Minear’s Victors’ Justice argument took a “jaded view” of the proceedings,57 thus characteristic of the newer scholarship on the IMTFE. James Burnham Sedgwick’s article, “Memory on Trial: Constructing and Contesting the ‘Rape of Nanking’ at the International Military Tribunal for the Far East, 1946-1948,” outlined the contested nature of the IMTFE on the crimes committed during the Rape of Nanking.58 Sedgwick argued that “using courts as a panacea for postwar restoration and as validators of traumatic narratives is both short-sighted and ineffective.”59 The author posited that the IMTFE is a prime example of this “inadequacy.”60 Sedgwick also explained that the Rape of Nanking “literature is typified by a divergence rather than consensus and defined more by vitriol and ideology than historical inquiry.”61 This article delved into whether or not law (trials) can be a source for recording history, thus separating the roles of lawyers and historians. This contrasts with the contributions of Comyns-Carr’s article, which blended these two together, via a lawyer writing a journal article in which he discussed the historical precedent set by the Tokyo IMT. Though this article will contribute to the 56 Kirsten Sellars, “Imperfect Justice at Nuremberg and Tokyo,“ The European Journal of International Law 21, no. 4, (2011): 1102. 57 Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal, (New York: Oxford, 2008): 1. 58 James Burnham Sedgewick, “Memory on Trial: Constructing and Contesting the ‘Rape of Nanking’ at the International Military Tribunal for the Far East, 1946-1948,” Modern Asian Studies 43, no. 5 (September 2009): 1229. 59 Ibid. 1229. 60 Ibid. 61 Ibid. 1232.

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chapter on Nanking, it is unique because it is the most recent literature found that aligns itself with Minear’s Victor’s Justice argument. In 2011, Kristen Sellars published an article, Imperfect Justice at Nuremberg and Tokyo, which provided a book review of three important works related to the study of the Nuremberg and Tokyo International Military Tribunals. In it, she argued that each book makes an important contribution to scholarship, providing insight into: “conceptualization of charges, conduct of the trials, the findings they made and, finally, the respective legacies of Nuremberg and Tokyo.”62 Sellars’ work highlighted how views of the trials changed with each generation of authors influenced by their respective political and historical contexts,63 and how the problems in the original charges remain unsolved “despite the appearance of similar charges within the remit of “ the modern ICC.64 This article shed light on a few of the major works of both major IMTs. Beyond Victor’s Justice: The Tokyo War Crimes Trial Revisited, Ed. By Yuki Tanaka, Tim McCormack, and Gerry Simpson, is a collection of articles and chapters attempting to readdress an under researched topic and reconsider Minear’s Victor’s Justice narrative. This collection of papers began with a “contextualization” of the Tokyo Trials, including historical significance, historiography, and Japanese societal 62 Kirsten Sellars, “Imperfect Justice at Nuremberg and Tokyo,“ The European Journal of International Law 21, no. 4, (2011): 1087. 63 Ibid. 1088. 64 Ibid. 1085.

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attitudes.65 Furthermore, the authors “attempt here to locate the Trial in broader contexts and to introduce issues that arise again for subsequent analyses.”66 According to legal academic Zachary D. Kaufman,67 the United States government played a central role in the Tokyo IMT for three reasons. The first reason was American sensitivity to the suffering of American soldiers “at the hands of” the Japanese military;68 the second was the desire for the U.S. to establish a stronger presence in Asia, in an attempt to stop the spread of communism and increase American stature in international affairs.69 The third reason, which Kaufman argued was subconscious, was discrimination.70 This source shed light on the extent of American involvement at Tokyo, and their status as a global actor at the time. The Hidden Histories of War Crimes Trials is a compilation of lesser-known histories by contributing authors, with four aims: consolation, recovery, pedigree, and pedagogy.71 This book is a collection of articles and chapters attempting to readdress an under researched topic and reconsider Minear’s Victors’ Justice 65 Ed. By Yuki Tanaka, Tim McCormack, and Gerry Simpson, Beyond Victor’s Justice? The Tokyo War Crimes Trials Revisited, International Humanitarian Law Series 30, Brill, 2011: xxviii. 66 Ibid. 67 “Zachary D. Kaufman,” Directory, Stanford School of Law, https://law.stanford.edu/directory/zachary-kaufman/. 68 Zachary D. Kaufman, “Transitional Justice for Tojo’s Japan: The United States’ Role in the Establishment of the International Military Tribunal for the Far East and Other Transitional Justice Mechanisms for Japan After WWII,” Emory International Law Review 27, no. 2 (2013): 786-787. http://law.emory.edu/eilr/_documents/volumes/27/2/symposium/kaufman.pdf. 69 Ibid. 787. 70 Ibid. 787. 71 Ed. By Kevin Heller and Gerry Simpson, The Histories of War Crimes Trials (London: Oxford University Press, 2013), 2-6.

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narrative. It posited that the contributing pieces of literature in the book achieve these four aims, and that the world was altered after the end of World War II.72 This book took a unique approach, by putting historical study into the context of war crimes trials. It also served as a necessary addition to the historiographical chapter because of the diverse nature of the works included. This work poignantly stated, “International criminal law was born out of the great contradictions that existed in the aftermath of WWII.”73 It also has the potential to powerfully shape “narratives— highlighting some relations and ‘spiriting away’ others; concealing what must remain hidden— was soon realized.”74 This quote introduced another interesting debate: the role of law in the narration and record of history. In The Hidden Histories of War Crimes Trials, the editors argued that Tribunals do play a role in shaping narratives. In, From Tokyo to the United Nations: B.V.A. Röling, International Criminal Jurisdiction, and the Debate on Establishing an International Criminal Court, 1949-1957, Lisette Schouten outlined Justice Röling’s work at the IMTFE and later the UN and his efforts to unify international criminal law into a single court. She argued that Röling was impacted by his work at the IMTFE, and that Röling viewed that as an “international criminal court would be necessary to try these new crimes, since they could not be prosecuted under national law.”75 Schouten argued that Röling’s views 72 Ibid. 191. 73Ibid. 191. 74 Ibid. 75 Lisette Schouten, “From Tokyo to the United Nations: B.V.A. Röling, International Criminal Jurisdiction and the Debate on Establishing an International Criminal Court 1949-1957,” in Historical Origins of International Criminal Law: Volume 2, by Morten

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on “global legal standards” and his attempt to create an international criminal court were “ahead of his time.”76 This chapter provided a unique insight into how Röling’s career was shaped after the IMTFE and the subsequent events that led to a rise then fall in popularity of an international criminal legal system and the eventual creation of the modern ICC. This shows the continued impact of the IMTFE on modern law. According to Yuma Totani’s Justice in Asia ad the Pacific Region, 1945-1952: Allied War Crimes Prosecutions, Totani analyzed the trial records to bring out Allied courts’ findings on criminal liability of those accused of war crimes.77 The book argued that various factors influenced the fairness of individual trials: “1. Timing of the trials, 2. competence of other court staff, especially court interpreters, 3. Competence of the prosecution, the defense, and the judges, 4. Types of evidence introduced during the court proceedings, 5. Politics that defined the context of individual trials.”78 Totani’s book provided an interesting analysis of the trials, however, it had an Anglo-American focus. This source provided important information regarding some of the individual trials. Moreover, Kirsten Sellars’ article also briefly considered the legacy of Justice Pal, and his complicity in Japanese conservative aims of justifying Japan’s policies during the war.79 A 2016 Deutsche Welle article also considered this position in its examination of legacy of Justice Pal in Japan. The article argued that because Justice Bergsmo, Ed. CHEAH Wui Ling, and YI Ping (Brussels: Torkel Opsahl Academic EPublisher (2014), 210, https://www.peacepalacelibrary.nl/ebooks/files/387173242.pdf. 76 Ibid. 212. 77 Yuma Totani, Justice in Asia and the Pacific Region, 1945-1952: Allied War Crimes Prosecutions (New York: Cambridge University Press (2015), 5. 78 Ibid. 20. 79 Ibid. 1099-1100.

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Pal rejected the legitimacy of the IMTFE, current Japanese citizens, including Prime Minister Shinzo Abe, venerate Pal today.80 This showed a continued relevance of the trials in Japan today and their contested legacy. The majority of literature has a broad focus on the Tokyo trials and the IMTFE, with the exception of Fred L. Borch’s work Military Trials of War Criminals in the Netherlands East Indies 1946-1949. This book has become a central piece of scholarship in both the historiographical chapter and throughout the thesis. This book is the first inclusive English-language book about Dutch war crimes prosecutions in the Dutch East Indies (NEI).81 Borch postulated that the IMTFE was a part of the Allied effort to implement order and seek justice for Japanese war crimes in the “new world order created by the United Nations, war crimes would no longer go unpunished.”82 Borch’s book was the first of its kind. It included overviews of major cases of the IMTFE in the NEI, and thus serves as an excellent starting point for understanding the Dutch role in the IMTFE and the changing world order in the aftermath of the Second World War. This thesis used this book as a platform for further research, expanding this to both Dutch and American individuals in the NEI, as well as those in China and Japan. 80 Martin Fritz, “The eternal burden of the Tokyo War Crimes Tribunal,” DW, 18 January 2016, https://www.dw.com/en/the-eternal-burden-of-the-tokyo-war-crimes-tribunal/a-18986976. 81 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), v. 82Ibid. vi.

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One of the most recent titles, Japanese War Criminals: The Politics of Justice After the Second World War, also attempted the overwhelming task of analyzing the entire Tribunal, by tracing “the processes by which Japanese war crimes were identified, investigated, prosecuted, and punished.”83 The book argued that the aim was to achieve “substantive justice,” which differs from “procedural justice through its focus on outcome and its pragmatic approach… that law and legal proceedings are tools for achieving justice not ends in themselves.”84 A major flaw, however, is that there is no consensus on what the substantive justice means.85 This book maintained that the IMTFE trials were entirely legitimate,86 constituting a certain departure from Minear’s Victor’s Justice view. The historiography began during the IMTFE with Comyns-Carr and other analyses. However, these consisted mostly of a political science- related analysis of the events. The literature came to a head with Minear’s Victor’s Justice in 1972: he considered his own work to be political in nature. Minear’s book was the first major analysis of the IMTFE and remains an important, dominating work of literature in this field. There was some scholarship in the 1970s and 1980s, which sought to broadly understand the IMTFE and post-war Dutch-American relations. Cassese’s interviews with Justice Röling were published in 1993, adding a primary source to the literature, and a newspaper article nearly overlapping with the 50th anniversary of the Tokyo IMT discussing the role of memory in modern 83 Sandra Wilson, Robert Cribb, Beatrice Trefalt, Dean Aszkielowicz, Japanese War Criminals: The Politics of Justice After the Second World War, (New York: Columbia University Press, 2017), 4. 84 Ibid. 85 Ibid. 86 Ibid. 270.

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Japan. This work is classified as a primary source as well as a historical account of these events. In 1998, R. John Pritchard’s introduction may speak to the transformation in the discipline of the literature: ultimately a legal-historical analysis of the IMTFE. The early 2000s saw a slight increase in scholarship; however, this may have coincided with a general increase in scholarship related to the Second World War. In 2008, Boister and Cryer’s book was strictly a legal analysis of the Tokyo IMT, because the authors are lawyers rather than historians.87 Sedgewick’s 2009 article also served to bridge a gap between legal and historical analyses. In the most recent decade, from 2010, there has been a resurgence of scholarship related to the IMTFE, which has sought to reexamine the Victor’s Justice narrative. This thesis intends to understand the trials in agreement with this historiographical trend away from Richard Minear’s argument, necessitating an extensive study of the documents related to the trial to conduct this reevaluation. This paper, unlike the ambitious nature of the early scholarly literature, is narrowed down to American-Dutch relations focused on only three locations of the IMTFE, instead of attempting to cover the entire Tribunal. The literature also examined the role of narratives. There is no consensus on whether law—or in this case the IMTFE, can or should have the ability to record historical narratives. Some sources also questioned whether the Tribunal should play a role in determining national narrative of a state’s war in the Second World War. Most significantly, the literature to date has experienced a disciplinary 87 Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal, (New York: Oxford, 2008): 1-2.

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evolution. The literature surveyed in this historiography began with a political, contemporary analysis of the IMTFE, and has evolved to a historical analysis and most recently, a legal analysis of the events. The sources presented in this chapter served as a foundation for the research discussed in the coming chapters regarding the potential influence of Dutch-American relations at the IMTFE. Fred L. Borch’s book was the only book in English that examined war crimes trials in the NEI. Current debate and scholarship surrounds Minear’s initial argument that the IMTFE was simply Victor’s Justice, however, new scholarship encourages a reexamination of that claim. Current scholarship related to the IMTFE was examined on the spectrum of agreement with Minear’s Victors’ Justice argument. This thesis seeks to understand what the state of Dutch-American relations were at the IMTFE and what, if any, impact they made have had on the proceedings and their outcomes. This work aims to understand the relationship between Dutch-American relations at the proceedings and the outcome of the IMTFE. This thesis relied on official documentation of the proceedings, including the indictment, defensive and prosecutorial arguments, the Tokyo IMT Judgment of 12 November 1948, Justice Röling’s dissenting judgment, as well as background information regarding the individual cases outlined in the case studies. This documentation came from the Netherlands Institute on War Holocaust and Genocide Studies in Amsterdam, the ICC’s Legal Tools Database, and the University of Virginia School of Law’s International Military Tribunal for the Far East Digital Collection. Additionally, this thesis utilized news articles surrounding events relevant to the proceedings

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including those involving Dr. OKAWA assaulting TOJO Hideki in court,88 and cooperation in the form of information sharing between Dutch and Americans working in both Tokyo and Batavia. Some secondary source literature was used for the case studies, most notably Fred L. Borch’s Military Trials of War Criminals in the Netherlands East Indies 1946-1949, and Philip R. Piccigallo’s The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951. Despite the massive scale of the IMTFE, there is little scholarship to discuss the events and their potential impact on modern international law and diplomacy. 88 “News Clipping Jap Who Slapped Tojo Cured-Will Face Trial Again,” Tavenner Papers and IMTFE Official Records, University of Virginia School of Law, International Military Tribunal for the Far East Digital Collection, http://imtfe.law.virginia.edu/collections/tavenner/3/7/news-clipping-jap-who-slapped-tojo-cured-will-face-trial-again.

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Chapter 3: Precedents for Modern International Law, Japanese War

Crimes Trials in the Netherlands East Indies

The Netherlands East Indies (NEI), known today as the Republic of Indonesia, held trials of class B and C Japanese war criminals. For the cases outlined in this chapter, these trials were held in Dutch temporary courts-martial in Batavia (modern-day Jakarta), and Makassar. Dutch military courts in the NEI tried 448 cases.89 The two case studies to be discussed in this chapter, case no. 76 Prosecutor v. Awochi Washio,90 and case no. 79, Prosecutor v. Shigeki Motomura and 15 Tokkeitai Members,91 were conducted in Batavia and Makassar, respectively. Batavia and Makassar were the sites of the largest Dutch war crimes trials.92 Primarily, the Japanese war crimes trials in the NEI were a Dutch-run show, unlike their Tokyo counterpart, which was run by the Americans with Dutch representation and input.93 In June 1940, Japan sent demands to the Dutch government in exile to supply oil and minerals, which the Dutch refused. Japan made the same demands via delegation to Batavia in September 1940. Lt. Governor General Hubertus J. Van 89 Philip Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East 1945-1951, (Austin: University of Texas Press, 1979), 174. 90 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 134. 91 Ibid. 157. 92 Ibid. 37. 93 Philip Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East 1945-1951 (Austin: University of Texas Press, 1979), chapter 10.

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Mook rejected these demands in June 1941, and then Japan attacked Hawaii and the Philippines in December 1941.94 By the end of the war, the Japanese interned one hundred thousand civilians, “all European and some Eurasians.”95 In Military Trials of War Criminals in the Netherlands East Indies 1946-1949, United States Army Attorney Fred L. Borch argued that Japanese occupation of the NEI and subsequent proceedings were unique because of the sheer number of individuals persecuted by the Japanese.96 Dutch trials in the NEI ended on 24 December 1949, with 1,038 defendants tried in proceedings.97 According to American professor H. Arthur Steiner, the Dutch had “political and economic responsibilities”98 in the NEI since 1595. In the NEI, political authority was divided geographically 99 between the Republic of Indonesia that declared independence on 17 August 1945,100 and the Netherlands Indies Civil Administration (NICA), which became the Dutch government of the NEI.101 The NICA established civil governments in “all of the islands of Indies accessible to the forces of the Southeast Asia Command” (SEAC), with whom they entered the NEI in 94 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 12. 95 Ibid. 15. 96 Ibid. 15. 97 Ibid. 36. 98 Post- War Government of the Netherlands East Indies, H. Arthur Steiner, The Journal of Politics, Vol. 9, No. 4, (Nov, 1947), 625. 99 Political authority in the NEI was divided geographically at the time, the article was written in 1947. 100 Post- War Government of the Netherlands East Indies, H. Arthur Steiner, The Journal of Politics, Vol. 9, No. 4, (Nov, 1947), 627. 101 Ibid.

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1944-45.102 This excluded Java, Sumatra, and Madura “(except for coastal areas in the vicinity of Batavia Soerabaya, Java, and around Padang and Medan in Sumatra).”103 In the aforementioned excluded areas, the Republic of Indonesia had already established its authority prior to the arrival of the Allies in late 1945.104 Steiner also explained the provisions and significance of the Linggadjati agreement, ratified by both the Dutch and Republic of Indonesian governments on 25 March 1947.105 Its provisions call for Dutch recognition of the Republic of Indonesia’s de facto autonomy over Java, Madura, and Sumatra, to be incorporated into the Republic on 1 January 1949.106 The U.S. also gave de facto recognition to the Republic of Indonesia, “subject to the sovereignty of the Netherlands in matters relating to foreign and economic affairs.”107 Steiner also argued that the 1945 provisional Constitution of the Republic of Indonesia cited principles from the American constitution and Declaration of Independence.108 Moreover, this shows the complex nature of Dutch-American diplomatic relations at the time. For the purposes of this chapter, the discussion will be limited to the territories under Dutch authority, primarily Batavia and Makassar and will examine Dutch- American relations within the context of the IMTFE and focus on the two case studies examined in this chapter. There was significant evidence of cooperation between the Dutch and Americans working in the NEI and Tokyo, for the purpose of 102 Ibid. 627-628. 103 Ibid. 627-628. 104 Ibid. 627-628. 105 Ibid. 635. 106 Ibid. 635. 107 Ibid. 108Ibid. 640.

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prosecuting war criminals, mainly in the form of sharing evidence and communication regarding witness testimony. Moreover, American law and the Tokyo IMT (trials of class A war criminals) influenced changes to Dutch law allowing for increased prosecutions. This chapter argues that there was a top-down impact of Dutch-American relations on the temporary Courts- Martial and the cases. Dutch-American relations and cooperation primarily impacted the changes in law, which in turn affected the case studies examined in this chapter. In the NEI, Dutch war crimes followed the same approach as Britain, Australia, and Canada.109 According to author Philip Piccigallo, the Netherlands created “two sets of regulations governing war crimes trials in the East and in Europe.”110 This stands in contrast to the war crimes trials in the NEI, where primary reliance was on international law because Dutch regulations excluded specific reference to ‘crimes against peace,’ and ‘crimes against humanity.’111 Piccigallo explained that courts in Holland relied on Dutch penal law, that war crimes were treated as “offenses against the municipal law, not as violations of the laws and customs of war.”112 In the NEI, however, authorities “approached war crimes trials independently of municipal law.”113 Piccigallo explained, “primary reliance was on international law.”114 109 Ibid. 110 Ibid. 111Ibid. 175. 112 Philip Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East 1945-1951, (Austin: University of Texas Press, 1979), 174-5. 113 Philip Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East 1945-1951, (Austin: University of Texas Press, 1979), 174-5. 114 Ibid. 175.

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In August 1945, Dr. H. J. Van Mook, the Netherlands East Indies Lieutenant General, warned Japanese commanders in the Netherlands East Indies that those who mistreated civilians or POWs “would be treated like war criminals.”115 Justice B.V. A. Röling and Assistant Prosecutor W. G. Frederick Borgerhoff-Mulder also served in Batavia after their posts in Tokyo.116 The war crimes trials in the NEI were conducted by Courts-Martial, a military court. In Batavia, a Temporary Courts-Martial tried the WASHIO Awochi case; the jurisdiction of which was determined by Statute Book Decree No. 46 in 1946 concerning “Legal Competence in Regards to War Crimes.”117 At the Dutch trials in the NEI, there were 39 offenses “prosecutable as war crimes,” 33 of which were already considered ‘violating the laws and customs of war,’ while six were “war crimes prosecutable by domestic law.”118 Later, five more offenses were added to ‘violations of laws and customs of war’ to be prosecutable as war crimes.119 These additional offenses were: “ill-treatment of interned civilians or prisoners, carrying out of or causing execution to be carried out in an inhuman way, refusal of aid or prevention of aid being given to shipwrecked persons, intentional withholding of medical supplies from civilians, and commission, contrary to the 115 Ibid. 174. 116 Ibid. 174. 117 Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Vol. XIII Library of Congress, (London, 1949), 123, https://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-13.pdf. 118 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 37. 119 Ibid. 40-41.

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conditions of a truce, of hostile acts or the incitement thereto, and the furnishing of others with information, the opportunity, or the means for that purpose.”120 Additionally, authorities in the NEI decided to remove prohibition of ex post facto law from the Temporary Courts-Martial.121 Additionally, the suspension of Article 1 in the Netherlands, defined as the removal ex post facto law, from the Netherlands Penal Code and in the NEI also allowed for increased prosecutions. Borch stated in a footnote that the suspension of ex post facto law is also found in Article 1 of the US constitution, Articles 22-23 of the Treaty of Rome, and Article 7 of the European Convention on Human Rights.122 In addition to the 38 offenses (33 generally accepted and the added 5) listed in Decree No. 44, Lt. Governor-General van Mook signed Decree No. 45, adding a 39th offense, characterized as a “radical departure from Dutch penal law.” This was the recognition and addition of “Conspiracy” as a prosecutable offense. 123 In the Nuremberg IMT, conspiracy was the one of four charges included in the indictment for the Nuremberg IMT.124 The inclusion of conspiracy as a crime was a major influence of American law. Prior to the temporary courts- martial in the NEI, there is evidence of cooperation and communication between Dutch authorities in NEI, Dutch representatives at Tokyo IMT, and American authorities in Tokyo. A letter from A.T. 120 Ibid. 121 Ibid. 41-43. 122 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 41-3. 123 Ibid. 42-43. 124 “International Military Tribunal at Nuremberg,” Holocaust Encyclopedia, United States Holocaust Memorial Museum, accessed 19 July 2018, https://www.ushmm.org/wlc/en/article.php?ModuleId=10007069.

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Laverge to the “Acting Chief of Counsel” proved communication between Dutch Authorities in the NEI and American Authorities in Tokyo, as well as a meeting between the NEI Lt. Governor-General Dr. H. J. Van Mook and American Captain Parsons on 11 February 1947.125 In the attached memorandum regarding the meeting, it stated that there was evidence shared between Dutch and American representatives for trials both in the NEI and in Tokyo.126 The memorandum did not have any direct impact on the outcome of the proceedings in the NEI; however, it did show a communication and cooperation between the US and the Netherlands in prosecuting war criminals. The “Netherlands Military Mission” also shared witnesses with IMTFE.127 This particular defense witness was Lt. General NAKASHIMA Tetsuzo, who at the time was detained in Sumatra, NEI, and requested temporary release to travel to Tokyo.128 The document also stated that NAKASHIMA was informed that he was under investigation, that he was also in poor health and A.T. Laverge requested that the Americans obtain only an “interrogatory” rather than having NAKASHIMA travel to Tokyo to testify.129 125 “Netherlands authorities and American Consul General,” 1, Box 4, Folder 2, Tavenner Papers and IMTFE Official Records, University of Virginia School of Law, The International Military Tribunal for the Far East, Digital Collection, http://imtfe.law.virginia.edu/collections/tavenner/4/2/netherlands-authorities-and-american-consul-general. 126 Ibid. 2. 127 “Witness, NAKASHIMA TETSUZO,” Box 4, Folder 2, Tavenner Papers and IMTFE Official Records, University of Virginia Law School, The International Military Tribunal for the Far East, Digital Collection, http://imtfe.law.virginia.edu/collections/tavenner/4/2/witness-nakashima-tetsuzo. 128 Ibid. 129 Ibid.

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Additionally, “Dutch representatives also assisted in the investigation and trial of Japanese suspected of war crimes against Americans.”130 This referred to American airmen who were taken prisoner and/or executed.131 Moreover, the US and the NEI authorities cooperated in taking the defendants’ statements.132 This document also explained a misunderstanding between the US and NEI authorities regarding a delay in taking statements, which was amicably resolved upon receipt of an apology from the Netherlands liaison officer to A.T. Laverge.133 In Tokyo, Dutch-American relations were characterized as overt (in public view), and limited, albeit significant. In the trials located in the NEI however, the state of Dutch-American relations is less visible, and occurs primarily via correspondence and sharing of evidence and documents. The cooperation between Dutch and American representatives at the Dutch war crimes trials in the NEI is characterized by continuous communication. The first case study in this chapter is Prosecutor v. Washio Awochi. WASHIO was accused of committing the war crime of enforced prostitution. WASHIO Awochi was born in 1886 in Nagasaki, Japan, but worked in Batavia from 1920 until his return to Japan on 30 November 1941, then returned to Batavia by “order” of the 130 Philip Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East 1945-1951, (Austin: University of Texas Press, 1979), 178. 131 Ibid. 132 “Defense Affidavits by Japanese Held in NEI,” 1, Box 5, Folder 4, Tavenner Papers and IMTFE Official Records, University of Virginia Law School, The International Military Tribunal for the Far East, Digital Collection, http://imtfe.law.virginia.edu/collections/tavenner/5/4/defense-affidavits-japanese-held-nei. 133 Ibid.

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Japanese government, in June 1942.134 WASHIO Awochi was a Japanese civilian hotelkeeper and owner of the Sakura Club, “under direct or indirect threat of intervention by the Japanese Military Police (‘Kempeitai’), women were forced to serve Japanese civilian men as prostitutes.”135 He was accused of running the brothel in the Sakura club September 1943-September 1945; and the “at least 11 of the women working as prostitutes had been Dutch interned in the camp at Cideng.”136 According to the UNWCC, Lies Beerhorst assisted WASHIO, with whom he lived since 1943, and claimed that Beerhorst found women to work in the Sakura Club as waitresses, who were then forced into prostitution.137 The women and girls were required to earn 450 guilders per evening and have at least 2 visitors each night.138 The document also stated that upon hiring, the women were unaware of the brothel’s existence.139 Moreover, very few of the women willingly agreed to engage in prostitution and WASHIO and Beerhorst often used threats of police measures 134 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 134-5. 135 Nina H. B. Jorgensen and Danny Friedmann, Enforced Prostitution in International Law Through the Prism of the Dutch Temporary Court Martial at Batavia, Chapter 31, https://poseidon01.ssrn.com/delivery.php?ID=6720901120090840831081160930 19087076109025046003043075006119075007098120064108114095098106127 03501301509800306407011809802411005105508604104911812206502508200 80831130360870840290101210961131050010960681231181171170310200700 21031095104095125112028001117&EXT=pdf. 136 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 135. 137 “Case No. 76, Trial of Washio Awochi,” UNWCC, ICC, Legal Tools Database, 122-3, https://www.legal-tools.org/doc/34df8e/pdf/. 138 Ibid. 123. 139 Ibid.

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and force to compel the women and girls to become waitresses.140 The United States Library of Congress published selections in 1949 from war crimes trials, which elaborated that in few cases where prospective employees knew about the brothel, “made specific arrangements that they would have nothing to do with it.”141 For his defense, WASHIO admitted to having the brothel, however it was under the “orders” of Japanese authorities and that Lies Beerhorst ran the entire business.142 On 25 October 1946, he was found guilty of the war crime of Enforced Prostitution, and sentenced to 10 years in prison.143 He was sent to Struiswijk prison in Batavia to serve his sentence, and died there in 1949.144 Prosecutor v. Washio Awochi was tried by the temporary courts-martial at Batavia, and continues to be regarded as a case setting a precedent for transitional justice and international law. According to legal scholars, these proceedings are unique among post- World War II trials for “invoking the war crimes of abducting girls and women for the purposes of enforced prostitution.”145 Moreover, it was the 140 Ibid. 141 Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Vol. XIII Library of Congress, (London, 1949), 122, https://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-13.pdf. 142 “Case No. 76 Washio Awochi,” UNWCC, Legal Tools Database, 123, https://www.legal-tools.org/doc/34df8e/pdf/. 143 “Trial of Washio Awochi by a Netherlands Temporary Courts-Martial at Batavia Sentence,” 25 October 1946, Legal Tools Database, ICC, https://www.legal-tools.org/doc/7742fc/pdf/. 144 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 138. 145Nina H. B. Jorgensen and Danny Friedmann, Enforced Prostitution in International Law Through the Prism of the Dutch Temporary Court Martial at Batavia, Chapter 31, https://poseidon01.ssrn.com/delivery.php?ID=6720901120090840831081160930 19087076109025046003043075006119075007098120064108114095098106127 03501301509800306407011809802411005105508604104911812206502508200

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only forced prostitution trial translated to English and published in the UN War Crimes Reports.146 In the second case study, Prosecutor v. Shigeki Motomura and 15 Tokkeitai Members, MOTOMURA Shigeki and 15 other Tokkeitai (Japanese naval police) members were accused of committing war crimes including, “mass arrests, systematic terrorism against criminal suspects, and ‘repeated, regular, and lengthy torture,’”147 beginning in March 1942 until August 1945.148 The four most culpable defendants were Sub-Lt. MOTOMURA Shigeki, who was the highest-ranking accused and second-in-command of the Tokkeitai in South Celebes, Senior Petty Officer SAKAI, MOTOMURA’s deputy, and Warrant Officers MINAMI and ONO.149 They were charged because they “ordered, encouraged, or allowed” those under their command to commit war crimes.150 MOTOMURA was also accused of “severely” mistreating three American Airmen who were captured and turned over to him in January 1945.151 During the proceedings, MOTOMURA only partially admitted to his crimes, including those of his subordinates (but only those under his direct control), 80831130360870840290101210961131050010960681231181171170310200700 21031095104095125112028001117&EXT=pdf. 146 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 134. 147 Ibid. 157. 148 Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Vol. XIII Library of Congress, (London, 1949), 138, https://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-13.pdf. 149 Fred L. Borch, Military Trials of War Criminals in the Netherlands East Indies 1946-1949 (London: Oxford University Press, 2017), 158. 150 Ibid. 151 Ibid. 159.

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The London Charter clearly contemplated the possibility of multiple IMT trials: Article 22 provided that “[t]he first trial shall be held at Nuremberg, and any subsequent trials

The professional segment of the OCC initially consisted of seven different groups. Four were legal divisions: the Military Division, the Ministries Division, the

Such a trial would also have made logistical sense, given that the complexity of the crimes against peace charges required Taylor to largely defer trials involving them until later

1 Count Three, the crimes against humanity count, alleged that the same experiments and murders constituted crimes against humanity when conducted “upon German

Kelsen explicitly embraced the former solution, arguing that the disappearance of the German government meant that the Control Council had the authority to

Tribunal I admitted the affidavits on the ground that they had been received by the IMT and thus qualified as IMT “records.” 99 Indeed, the only time a tribunal accepted a

82 It also ordered the OCC to give the defense access to all of the Farben documents in its files that it did not intend to use for the first time on

The Ministries tribunal stated that “[o]ur task is to determine which, if any, of the defendants, knowing there was an intent to so initiate and wage aggressive war, consciously