JAPANESE WAR CRIME TRIALS

HL Deb 19 May 1949 vol 162 cc858-904

4.15 p.m.

LORD HANKEY rose to call attention to the present situation in Japan in relation to war crimes trials and to the sentence on ex-ambassador Shigemitsu; and to move for Papers. The noble Lord said: My Lords, to-day, under inescapable impulse of personal conscience and public duty, I call attention to the Tokyo trials of war criminals generally, and, in that framework, to the plight of one of their victims, an old and true friend of this country, Mamoru Shigemitsu, who was Japanese Ambassador here before the war. If I had time I would expand on his love of peace, his patriotism, his vision to see that Japan's higher interests lay in peace and friendship especially with this country and America, his courage to press his views on his Government, even when they were unpopular, and the aura of integrity and goodness that surrounded the man. But, more eloquent than anything I can say, are the first and last lines of the dissenting judgment of the learned Netherlands Justice at the Tokyo trials, Mr. Roling. His first words were: The evidence laid before this Tribunal reveals Shigemitsu as a diplomatist and statesman who worked for peace rather than for war … The learned Justice's last words in his judgment were: Summarising, the accused Shigemitsu Mamoru should be acquitted on all charges brought against him.

I must begin, however, with the less exciting question of my request for Papers, which is no mere formality in this instance. Although more than six months have passed since the publication of the judgment and findings of the Tokyo Tribunal, the Government have published nothing at all so far as I am aware. I must thank my noble friend Lord Henderson, who is not in his seat to-day, for allowing me access to the one typescript of the judgment and findings in the Foreign Office Library. It is many times longer than the Nuremberg White Paper. It is not an easy method, having to get one's information in that way, and check it. The majority judgment covers more than a thousand pages of close typescript and the three dissenting judgments are, in the aggregate, longer still, but they are of considerable importance. I realise that, in present conditions, it will take some time to produce a White Paper similar to the Nuremberg Report, though it must be done in the case of so important and historic a document, and I must ask particularly for an answer on that point. I suggest that pending the print, a typewritten copy of the judgments, including the dissenting judgments, should be placed in the Library. I have given notice of that.

In this country, what little information has been published about the trials, is not edifying. In America more has been published and it is less edifying. Private communications and impressions from Tokyo are the least edifying of all. As a leading article in the Washington Post of January 11, 1949, put it: It is more and more evident to us that the good name of justice, let alone of the United States, has been compromised by the War criminal cases in Tokyo. The Proclamation establishing the Tribunal was issued on January 19, 1946, and the trials have taken about two and a half years. That is very hard on the accused and indeed on everyone. But it is not surprising. There were eleven judges, and twenty-five accused who were all pronounced guilty. Seven, including six generals, were sentenced to death by hanging; sixteen were imprisoned for life; one was sentenced to twenty years' imprisonment and one, namely Shigemitsu, to seven years' imprisonment. I am coming to him in a minute. There were, as I have already mentioned, three dissenting judgments. They were delivered by the learned French. Netherlands and Indian justices respectively, which shows how controversial these trials must have been. It all sounds very unwieldy and cumbersome and not exactly the milieu in which men ought to be tried for their lives.

According to a notable dispatch in The Times of November 12, the President, Sir William Webb, the learned Australian Justice, expressing an opinion differing in certain ways from the majority judgment, said that the crimes of the persons accused were far less heinous, varied and extensive than those of the Germans accused at Nuremberg. He also expressed the opinion that it might prove revolting to hang or shoot such old men as some of the accused. After some adverse remarks on the responsibility of the Emperor, who had been granted immunity from trial, he went on to say: If in such a case the court must by law impose capital punishment, the prerogative of mercy would probably be exercised in order to save the lives of the condemned. In spite of that strong hint, all the death sentences were carried out.

According to The Times report, counsel for the defence protested vigorously against the Tribunal's refusal to read in open court the three dissenting opinions, and accused the court of unfairness in refusing to allow the defendants "to know what is said touching their lives and liberties." This is rather serious, because the dissenting judgments, individually and collectively, are very critical of the majority judgment. Much more has appeared in reputable British and American newspapers. I have quoted only The Times and the Washington Post and I will not quote any more; it is sufficient to mention the titles of leading articles, such as "Injustice in Tokyo" and "Shigemitsu Travesty." These reports, which have not been challenged, were sufficiently serious to stir me to very close scrutiny of the judgments, as close a scrutiny as I could manage of this enormous mass of documents, for which I had to go to the Foreign Office Library. That scrutiny did not reassure me.

There is one feature in the Tokyo trials which distinguishes it markedly from Nuremberg. At the latter nearly all the defendants convicted of serious crimes against peace were also found guilty of serious crimes against humanity, for which they would have received death sentences anyway, as the greater crime included the less. That was true also of the seven men sentenced to death at Tokyo: they were all condemned for crimes against humanity as well as crimes against peace. But in the case of the sixteen life imprisonment sentences, no fewer than fourteen of the accused were sentenced only for political crimes—I mean by that, crimes against peace. In addition, Tojo was sentenced to twenty years' imprisonment, making fifteen of these cases altogether. In the case of the Tokyo trials the historical background of the trials, which I raised a fortnight ago in discussing the Nuremberg trials, may become important, but until we have easier access to documents not much can be said on that point, which I reserve.

The matter has to be considered, however, and all the more carefully because the procedure in findings of fact at the time of the trial was severely criticised by the learned French judge, and this was one of the many reasons for his dissent. After stating that the guarantees, which the law of nations grant the defendants, include "oral deliberations outside of all influence bearing on all produced evidence among all the judges who sat at the trials." he continued: All the part of the judgment relative to the findings of fact were proposed by a drafting committee and submitted by the latter as its preparations progressed, first to a committee of seven judges called the 'Majority.' Copy of this draft was also distributed to the four other members of the Tribunal. The latter were called upon to submit their own views to the majority in view of their discussion, and should the case arise, for modification of the draft. But the eleven judges were never called to meet to discuss orally a part of or in its entirety this part of the judgments."— I am referring to the factual part— Only the part of the draft relative to individual cases was the object of oral discussion. To the layman who knows nothing of these methods of procedure, it would be rather interesting to know whether this system of majority and minority groups is usual. I imagine that one has to adopt all sorts of expedients when there is such a large court.

On one point the Tokyo Tribunal seems to have imitated the Nuremberg trial rather too closely—namely, in trying to establish that there was a conspiracy in Japan to do all these wicked things. As I read the majority judgment I felt that the arguments on this point were rather thin, and the dissenting judgments strongly confirm that view. With your Lordships' permission I will read two short extracts. Here is one from the French dissenting judgment: No direct proof was furnished concerning the formation among individuals known, on a known date, at a specified point, of a plot, the object of which was to assure Japan the domination, unaccepted by its inhabitants, of some part of the world. The only thing proved is the existence among certain influential classes of the Japanese nation of the desire to seat at all costs the domination of Japan upon other parts of East Asia. The second extract is from the judgment of the Honourable Justice Pal, the learned Indian Justice, who said: The case of the accused before us cannot in any way be likened to the case either of Napoleon or Hitler. The constitution of Japan was fully working. The Sovereign, the Army and the Civil officials all remained connected as usual and in normal ways with the society. The constitution of the State remained fashioned as before in relation to the will of the society … These accused came into power constitutionally and only to work Me machinery provided by the constitution… These persons did not usurp any power. And so on.

This makes it look as though the Japanese, though stupid and sometimes wicked, did not conspire. During my own association with The Japanese in the years between the wars there was no change at any time in the personnel one met at international conferences. The various representatives were always very much the same. The point is of importance, because the accused with the exception of only three, including Shigemitsu, were convicted on Count 1, of conspiracy, which was treated as the worst of the political crimes. "Conspiracy" appears in a very large number of the individual findings. With conspiracy in Count 1 went wars of aggression, and some of the dissenting judgments point out how desperately controversial the question of defining "aggression" has been in the past. I have myself seen three great efforts of the League of Nations fail largely on the question of aggression, and I have never yet seen a definition that could pass muster, at any rate, of the Service staffs. This is such a big question I dare not enter upon it to-day. All these points seem to me to tend towards the desirability of a revision of the sentences. Although the case against Shigemitsu is the only one I pretend to have examined carefully. I am told that there are grave doubts about some of the others. For instance, the sentence of death on Hirota is very much criticized, particularly in Japan, where the people cannot understand why he was condemned to death.

To sum up that part of my speech, I have found nothing in any of the individual judgments to weaken the criticisms that were made in our debate a fortnight ago on the policy on these trials, and of their continuation. I do not think I need repeat my criticisms, because they are recorded in Hansard. I find nothing that invalidates the recommendations of the right reverend Prelate, the Lord Bishop of Chichester, and at the end of my speech in accordance with notice which I have given to my noble and learned friend on the Woolsack, I shall ask for assurances on similar lines in the case of the Tokyo trials.

I now come to Shigemitsu. Much of the criticism of these trials, private as well as public, centres around the case of Shigemitsu, where there seems to me to be a strong prima facie case for revision. The American papers and broadcasts have stated repeatedly that the Chief Prosecutor, Mr. Joseph B. Keenan, has declared that Shigemitsu should not have been put on trial, let alone convicted, and that he disagrees with the International Court in imposing a seven-year term of imprisonment. He also says that, but for the Russians, Shigemitsu would neither have been tried nor convicted. From the sponsor of the pretty tough indictment made at the beginning of the trial, that is a strong statement. It does not surprise me, because I heard rumours of the same kind as early as 1946.

His Excellency Mamoru Shigemitsu to give him his full title, was, as I have said, Japanese Ambassador in London from 1938 until the outbreak of war with Japan on December 7, 1941. He was a worthy successor to a distinguished line of Japanese Ambassadors, and was much respected here, even during the difficult months before the war, when he was doing his best to avert that catastrophe. I have in my hands more than a dozen tributes, prepared as evidence by well-known people, and sent under affidavit to Tokyo, to his work for peace, here and elsewhere. They include an extract from the speech in secret session by Mr. Winston Churchill, and statements by Mr. R. A. Butler, and three British Ambassadors, Lord Killearn, Sir Robert Craigie and Sir Francis Lindley. The last asks me to say that he considers the sentence of Shigemitsu the grossest miscarriage of justice. The list of those who have paid tribute includes six American diplomats, among them Mr. Joseph E. Davies, Mr. Kennedy and Mr. Joseph Grew. The noble Lord, Lord Killearn, was anxious to make a short statement to-day, but had to leave for distant lands by air yesterday. I understand, however, that he has authorised my noble friend Lord Sempill to communicate the gist of what he intended to say. The noble Lord, Lord Altrincham, regrets very much that at the last moment he has been prevented from coming here to put in a word for Shigemitsu.

My own statement was concerned solely with the first half of the war when, in conjunction with the late Lord Lloyd and one or two others, with the permission, of course, of the Foreign Secretary, I was in close touch with Shigemitsu on how to avert the extension of the war to Japan. There is no need to develop that theme, because—I hope with some aid from the documents sent to Japan—Shigemitsu was pronounced not guilty on the charge of conspiring or instigating wars of aggression; that is to say, he was not found guilty on the most serious charge, which would certainly have involved his death. To quote the majority findings: He was not one of the conspirators. Indeed, he repeatedly gave advice to the Foreign Office which was opposed to the policies of the conspirators. But Shigemitsu was found guilty of waging aggressive war, on which the majority finding records: He waged no war of aggression until he became Foreign Minister in April. 1943, by which time his country was deeply involved in a war which would greatly affect its future. To the layman, that charge of waging war after 1943 is answered very effectively in the long dissenting judgment of the learned Mr. Justice Roling, whom I have already quoted. In April, 1943, when Shigemitsu joined the Cabinet, he could not have been waging war of aggression, for the simple reason that the aggression had run out; it had been planned before the war, and had failed. Japan—and, indeed, the whole Axis—was fighting a defensive war. The battle of Midway Island had been lost; Japan had been thrown back in New Guinea and in the Solomon Islands; the Allies had landed in North Africa, and the Germans were retreating in Russia.

Moreover, Shigemitsu had entered the Cabinet as Foreign Minister, with the object of promoting peace, on which Mr. Justice Roling cites a good deal of evidence—for instance, approaches to the Swedish Minister (I could give the actual references in evidences on those points), an attempt to secure Russian mediation, talks from the very early days of his tenure of office, continued until his retirement, with Kido the Emperor's adviser, and reports on peace prospects to the Emperor himself. All that I get from Mr. Justice's Roling's judgment, but I could not see anything about it in the majority findings. I had to read them hastily, of course, but I do not think they are there, Mr. Justice Boling says: He who assumes public office in order to oppose that war, who accepts his appointment in order to promote peace, cannot and should not be accused of waging an aggressive war. Mr. Justice Roling scouts as untenable the contention of the majority judgment that the mere fact of entering a Cabinet as Foreign Minister, as Shigemitsu did in 1943, is per se a crime. And I think he is right. The majority findings say of Shigemitsu that on taking office he played a principal part in waging that war until he resigned on April 13, 1945. You can search the majority findings, and you cannot find what that "principal part" is, either in the general judgment relating to all defendants, or in the verdict relating to Shigemitsu.

As one who has lived with Cabinets in two major wars, in the first as a Secretary and in the second as a Miner of Cabinet rank, I am a little puzzled to know what "principal part" he can have played outside his own sphere. For example, I have never considered myself responsible for events like the loss of the "Prince of Wales" and "Repulse," of which I knew nothing beforehand. The point was raised in the Dardanelles Commission in the First World War, when (as some of your Lordships may remember) Mr. McKenna and some others repudiated all responsibility for the naval attack on the Dardanelles. On that the Dardanelles Commission's pronouncement was as follows: We consider that the responsibility of those members of the Cabinet who did not attend the meetings of the War Council was limited to the fact that they had delegated their responsibility to their colleagues who attended those meetings. Of course, that limitation on the responsibility of civilian Ministers applies especially in Japan, where the military authorities were so dominant. As Mr. Comyns Carr, just back from Tokyo, told the Royal Empire Society the other day: The War and Navy Ministers in the Japanese Government were not selected by the Prime Minister: they were appointed by the three senior officers in each of the two Services. These officers, by the simple process of refusing to appoint a Minister, could prevent any Government of which they did not approve from ever being formed. They could smash it by withdrawing their Minister and refusing to appoint another. That shows very graphically the position of the military authorities. Moreover, I submit that the precedents are against the majority judgment. Your Lordships will remember the Nuremberg findings in the case of Speer, who was Minister of Munitions. This is the extract: His activities in charge of German armament production were in aid of the war effort in the same way that other productive enterprises aid in the waging of war; but the Tribunal is not prepared to find that such activities involve engaging in the common plan to wage aggressive war as charged under Count I or as waging aggressive war as charged under Count II. While we are on precedents, what a precedent Tokyo had created! Any statesman in any country joining a War Cabinet as Foreign Minister to get peace when his country is in trouble will, in future, by the simple fact of doing so, be liable to condemnation by his enemies—for nobody else will condemn him—of waging aggressive war! I submit that the majority findings on Shigemitsu on the charge of waging aggressive war are so controversial as to support my demand for revision. In such revision I think the minority findings should receive close attention, and that Shigemitsu should receive the benefit of the doubt.

Now I come to the prisoner-of-war charges, which are the most serious. Shigemitsu was found not guilty on the more serious charge of authorising or permitting or encouraging the commission of war crimes, or of crimes against humanity, but guilty on Count 55, that he deliberately and recklessly disregarded his legal duty to take steps to secure the observance and prevent breaches of the laws of war. Before coming to the details of this charge I must refer to a new principle (mentioned in Mr. Comyns Carr's talk to the Royal Empire Society) which did not arise at Nuremberg but which, as I understand him, was established for the first time at Tokyo. It seems that the Tribunal held that a Government and not merely its military commanders is responsible for the proper carrying out of the duties under the Hague and Geneva Conventions for the proper treatment of prisoners of war."— I have nothing to say on that— Even civilian members of the Government, if they are made aware that these Conventions are being broken in a wholesale manner by the forces for which they are responsible and take no proper steps to put matters right, are criminally responsible, as well as the military leaders, to whose conduct it is directly due. I have given the Lord Chancellor notice of my intention to raise this matter, and I hope we shall be told under what power and by what authority this interpretation was adopted. Was it legal or was it not? Neither the Fourth Hague Convention of 1907, nor the Regulations thereunder, nor the Geneva Convention of July 27, 1929, say more than that Prisoners of war are in the power of the hostile Government but not of the individuals or corps who capture them. Every Government has to set up an inquiry office—which the Japanese did—but there is not a word as to what Minister or Department is to be responsible for administration and co-ordination. That is very properly left to each Government to decide for itself. As Mr. Justice Roling, said: In every Government a division of labour is established, and where, as in Japan, special departments of the Government were charged with a special task, e.g., the War and Navy Ministries with the care for prisoners of war and civilian internees in occupied territory, the Home Ministry with the care for civilian internees in Japan proper, the Ministry of Overseas with the care for civilian internees in Formosa, Korea and Saghalin, the responsibility for not preventing violations of the rules of war should be limited to these officials especially indicated in the pertinent domestic law. We shall see in a moment that the duties in regard to prisoners of war of Shigemitsu as Foreign Minister were very closely limited by Japanese law. He was practically no more than a post office. This interpretation hit him very hard. At any rate, neither Shigemitsu nor the other prisoners can possibly have known when they were in office that, after the war, their action or inaction would be interpreted by their enemies in that way. To invent a new interpretation during or just before the trial and to make it retrospective, does seem to be rather an extreme measure and rather a grim precedent for the future. There is an unsavoury flavour of vindictiveness about it.

I shall now come to some very queer points about this verdict. I cannot help thinking that there must have been a slip somewhere. Here is the first. When Shigemitsu became Foreign Minister on April 17, 1943, he was a member of the Government of Tojo, who had been War Minister from 1940 and, in addition, Prime Minister from October, 1941. He combined the two offices and retained them until July, 1944. If we turn to the majority findings on Tojo, we note that as Head of the War Ministry—to quote the text— … he was charged with the care of prisoners of war and of civilian internees in the theatres of war.… Above all he was head of the Government which was charged with continuing responsibility for the care of prisoners and civilian internees. The finding continues: The barbarous treatment of prisoners and internees was well known to Tojo. He took no adequate steps to punish offenders and to prevent the commission of war crimes in the future. After two pages of detail of Tojo's criminal callousness and neglect, the finding states that Tojo was also responsible for preventing knowledge of the ill-treatment of prisoners reaching the outside world. He was found guilty under Count 54.

From the general judgment on all the accused, we learn also that there was a bi-weekly conference of all bureau chiefs in the War Ministry—that was, on prisoners of war—which was presided over and usually attended by Tojo as War Minister, and by the Vice-Minister, at which the protests and the draft answers were brought up. Now if we turn to the findings on one Sato, Chief of the Military Affairs Bureau, and a member of the weekly Bureau conference, we find that Tojo presided at these meetings and he it was who decided that action or inaction should be taken in regard to the protests. Sato, his subordinate, could not initiate preventive action against the decision of his chief. For that reason, I may add, Sato was found not guilty. Turning to Tojo, you can say he was completely and almost exclusively responsible for all decisions on prisoners-of-war questions. He was a soldier by profession, leader of what the majority judgment calls the conspirators who had brought Japan into the war, and a very tough man. He had been brought into office as Prime Minister in the manner I have described. He was not open to Western moral principles and concepts. His explanation of his attitude on the Bataan march was (to quote the majority finding): that the commander of a Japanese Army in the field is given a mission in the performance of which he is not subject to specific orders from Tokyo. Such then were the powers and responsibilities, and such was the character and temperament, of the man under whom Shigemitsu, a civilian Foreign Minister, had to work for fifteen months in this prisoner-of-war business—that is to say, for just over half the time he was in office. That, of course, was only a fraction of his duties. They left very little responsibility or power to Shigemitsu, or to anybody else; and they show how extraordinarily difficult it must have been for him to secure redress, however anxious he was for it.

I suggest that the bearing of these difficulties on Shigemitsu's innocence are submerged in the majority judgment, for on reading the judgment on Shigemitsu you find no mention of Tojo, and on reading the judgment on Tojo you find no mention of Shigemitsu. There is not even a cross-reference or a hint to show how decisively his initiative must have been hampered by the fact that Tojo was his chief, as Prime Minister, and wielded these tremendous powers in prisoner-of-war questions, as War Minister, and was such a violent man. It is all the worse because, broadly speaking, the findings are in alphabetical order, so that the story of Tojo is not in the reader's mind when he reads the findings on Shigemitsu; and the point has not been mentioned in the earlier general judgment. That promotes a suspicion that it was not in the mind of the Tribunal either, or they could not have ignored it. It looks as if one judge had written the findings on Tojo and another on Shigemitsu, and as if they had not been compared and "stitched together" properly. I ask your Lordships to bear that in mind, for it is a grave omission, while we turn to the majority judgment's finding that Shigemitsu deliberately and recklessly disregarded his legal duty.

What was his legal duty? It was what was left over from Tojo. It is not disputed that under Japanese law this was limited to receiving and passing on complaints on prisoner-of-war camps to the responsible department and to obtaining, if he could, their replies and passing them on to the complainant. That was his official duty. There is no suggestion that he failed in this respect. But the answers from the department were always slow; often they never came at all; and they were rarely satisfactory. Perhaps some allowance should be made for the fact that a large proportion of the complaints related to camps in distant Islands, spread all over the Pacific, which as the war proceeded became more and more inaccessible. Even in a country like this, highly organised as it is, extraordinary mistakes can be made. It took me over two years to secure the release of a family of German Jews who were proved in the end to be absolutely and completely innocent. There were two brothers, one of whom was sent to Australia and the other to the isle of Man. The wife of the Isle of Man brother was sent to Australia, and the wife of the Australian brother was sent to the Isle of Man. And the poor mother-in-law or grandmother (I forget which), who was a very strict vegetarian, died of a wrong diet before anything could be done. A matter like that can take two years, even in this country; and I have heard of a great many other cases. One cannot be surprised, therefore, if these prisoner-of-war cases took some time, in a war that was spread all over the high seas.

The Tribunal, however, say that Shigemitsu had also legal responsibility as a member of the Government. The word "legal" seems arguable; but, anyway, as a diplomat with Western experience, he had, of course, a moral responsibility to do all that he could—and he would be the last mail to neglect it. To begin with, we must bear in mind that before he could get anyone to listen to him he had to secure some confirmation of the alleged facts, which the responsible military authorities would obviously seek to belittle. He had no time and no authority to visit the camps, either in Japan or in the distant islands, or to send anyone to check the allegations. He was entirely in the hands of the military authorities, and especially of Tojo, who alone had the knowledge, the means of obtaining knowledge, the power to issue orders and the decision. Yet Shigemitsu was much more active than the majority finding led us to believe. Mr. Justice Roling's dissenting judgment, though it is not in the majority judgment, states that: he complained to Kido"— that is, the Emperor's adviser— that the military were not easy to deal with regarding these matters, and on some occasions personally approached the War Minister on the subject. Undoubtedly the approaches to Kido were intended to be, and probably were, passed to the Emperor. I do not know what passed between him and Tojo, but we can all imagine it. Nothing of that appears in the majority finding. The majority judgment on all the prisoners, however, showed that occasionally he secured promises of concessions, which he passed on—only to find they were never implemented.

After Tojo's retirement in July, 1944, Shigemitsu took an even more important step, which again is omitted from the finding in the majority judgment on Shigemitsu. To dig that out we have to turn back many pages to the judgment on Koiso, where we find: that in October, 1944"— that is, after Koiso had been Prime Minister less than two months— the Foreign Minister"— who, of course, was Shigemitsu, though his name was not mentioned in the finding— reported to a meeting of the Supreme Council for the Direction of War, which Koiso attended, that according to recent information from enemy sources it was reported that the Japanese treatment of prisoners of war left much to be desired. That was the restrained way in which it was put. He further stated that this was a matter of importance from the point of view of Japan's international reputation and future relations. He asked that directions be issued to the competent authorities so that the matter could be fully discussed. That reads like a soulless Cabinet summary, devised to avoid friction—of which, I fear, I have drafted many in my time—conveying nothing of the passion and drama that often weighs over such a scene. But the passage is of enormous importance to Shigemitsu's innocence, for it shows that he forced the question—no doubt against military opposition—to the highest military authority in the land. Yet it is completely ignored in the Shigemitsu findings of the majority judgment: there is not even a cross reference to it, and, as I have said, his name is omitted from the reference to him in the Koiso findings, where he is referred to only as "the Foreign Minister."

I submit that, combined with the evidence I have already mentioned of what Shigemitsu did in Tojo's time, that evidence goes far to dispose of the statement in the majority findings that he took no adequate steps to have the matter investigated, although he as a member of the Government, bore overhead responsibility for the welfare of the prisoners. I do not know what more he could have done. He took steps to ensure that the Emperor knew what was going on. On occasions he went to the Prime Minister and eventually he took the question to the highest military authority in the country, the Supreme Council of War, which included the naval and military authorities responsible for prisoner of war camps. Mr. Furness, counsel for the defence, wrote a letter on December 10, 1948, which I have here. He said: He did many things which I could not bring out in evidence or in my petition. He did not say what the "many things," or some of the many things," were, but, as Mr. Furness considered that his lips were sealed, I cannot mention the matter either. But I did inform the Lord Chancellor confidentially.

THE LORD CHANCELLOR (VISCOUNT JOWITT)

May I point out that the only reason why Mr. Furness could not say these things was that Mr. Shigemitsu declined to go into the witness box?

LORD HANKEY

The reason why Shigemitsu declined to go into the witness box, as I find from other letters, is that he was afraid of giving away other people—colleagues. The noble and learned Viscount on the Woolsack smiles. This is a man who has been in prison. It is exactly what I gather he would do. I know him quite well and I am perfectly certain that he would not give away a colleague. To me, that is something very admirable.

The letter continues: I am certain that he had no knowledge. Civilians were not allowed to investigate, but he was deeply disturbed by the protests he had received. It is admitted that any man who had served as a diplomat in Western countries would be disturbed. His power was limited to persuasion, to bringing the matter before the Supreme Council for the Direction of War, which he did, and to trying to end the war. And, of course, to end the war was the one sure way of curing the trouble. The Tribunal said that Shigemitsu should have pressed the prisoners of war question to the point of resignation, if necessary. What good would that have done in a country like Japan? In Japan, resignation would have been treated as a cowardly desertion of his country in time of war and would have prevented his pursuing his main object, to bring the war to an end. His efforts for peace failed: how could they succeed in view of our policy of "unconditional surrender? Nevertheless, a few months later, Shigemitsu, at the risk of his life—it was the second time he risked his life for peace—signed the surrender on behalf of the Emperor and the Government, which should stand him in good stead with His Majesty's Government. It is not mentioned in the findings of the majority, so far as I can discover.

I solemnly urge the Government, with all the force at my command, to make a great effort to secure the release of Mamoru Shigemitsu, so that he may become available once more to help his country on to sounder lines. I know the difficulties, but they are not insuperable. It cannot be that a body, whatever body it be, that can create a great international machinery like this for trials and sentences and for carrying Out imprisonment, cannot devise some means of revision. Appeals for clemency were made to General MacArthur, but the time allowed for them was very short. The actual judgment was published in a Japanese newspaper which I think appeared on December 13, and only until December 19—six days—was allowed for appeals. I myself signed a telegram, in company with Mr. R. A. Butler, Sir Robert Craigie, Mr. Arthur Edwards, Mr. H. A. Gwynne, Sir Francis Lindley, General Francis Piggott and Lord Sempill—there was no time to collect more names—but nothing came of it. It means an approach to all the nations, or at least to the majority, that took part in the trials, which, alter all, means only ten approaches, including approaches to three Dominions and the countries of the three justices who entered dissents. But the solid fact remains that Shigemitsu is in American custody and it ought not to be impossible to secure his release and, I should hope, his reprieve. We ought to hammer away until we obtain it.

I realise, of course, that I have made only a prima facie case, a layman's case at that, and that before they take action the Government have to satisfy themselves that it has sonic validity. It is not for me to suggest the precise machinery. I can only urge that it should be speedy and calculated to reassure public opinion. It should include persons with political as well as judicial experience. Shigemitsu should have the benefit of the doubt, if there is a doubt. Subject to this, my suggestions are as follows: first, speedy action to secure the release of Shigemitsu; second, a review of all the Tokyo sentences; third, an end Jo the Japanese war crimes trials, and fourth, as soon as practicable, an amnesty. I beg to move for Papers.

5.8 p.m.

LORD OAKSEY

My Lords, I hope that I may be permitted by your Lordships' indulgence to say a few words in answer to the speech made in your Lordships' House by the noble Lord, Lord Hankey on May 5, on the subject of the Nuremberg trial of the major war criminals. No notice had been given to me by the noble Lord, and as it appeared to me irrelevant to the subject of your Lordships' debate I was not present when the noble Lord dealt with the Nuremberg trial, or I should have attempted to answer him at once. And, as this part of his speech was not reported in the public Press, I was unaware of it until the day before yesterday. The noble and learned Viscount on the Woolsack, if I may say so, effectively answered Lord Hankey at the time, but certain observations were made by the noble Lord which I think it is incumbent upon me to answer.

The noble Lord began his speech by contending that German atrocities were in retaliation for the declaration in January, 1943, that only unconditional surrender would be accepted, and that the proper policy for this country would have been to make peace on honourable terms. I think the noble Lord must have forgotten the date when the atrocities began, or else he must take an unusual view as to the sort of enemy with whom it is right to make peace on honourable terms. I will not weary your Lordships by citing many of the crimes which preceded the declaration of January, 1943. It is sufficient to remind your Lordships that as early as September, 1939, at the outset of the attack on Poland, an order was issued that the Polish nobility, intelligentsia and Jews should be liquidated, and that five weeks before the attack upon Germany's Soviet allies in June, 1941, a directive was issued that political commissars in the Soviet Army should be liquidated on capture. It was not suggested at the trial that these orders were not given, or that they were not carried out. Are these the sort of superior orders which the noble Lord thinks all soldiers must carry out? Is this the sort of Government with which this country should make peace upon any terms but unconditional surrender?

My Lords, the noble Lord then proceeded to contend that the Tribunal based their judgment entirely upon evidence obtained from the Germans; and he referred to the invasion of Norway. But he failed to notice that the Tribunal's judgment considers (on pages 28 and 29) the defence that Norway was invaded to forestall the Allies and points out that Raeder's memorandum of October 3, 1939, does not refer to this object. As for obtaining evidence only from Germany, the statement is entirely untrue. Naturally, use was made of German documents which proved the crimes out of the mouths of the criminals, but both by the prosecution, in presenting their case and in order to help the defendants to present their defences, the whole world was searched to obtain evidence. The Tribunal spent days and weeks in considering the applications by the prisoners for evidence which they thought might help them, and if the evidence was even remotely relevant every effort was made to obtain it. Witnesses were brought from all over Europe, interrogatories were sent to America and to England, and counsel for the defence were even allowed to search naval files at the British Admiralty.

Then the noble Lord complains that, though the account given in the judgment is perfectly correct, it makes such omissions that they, as he said, "Really make one's hair stand on end." He continues, in column 404, of the OFFICIAL REPORT: I do not confess to any great affection for the Germans, but I admit that I am very jealous of our reputation for fairness, and I am horrified at the idea of future Anglo-German relations being poisoned by false history, which will also give the Germans an excuse for making martyrs of Hitler and his gang. But, my Lords, the only omissions which the noble Lord cites are the occupation of the Ruhr in 1923, the use of black troops in the Rhineland, and the attempt to detach Bavaria and Saxony from Germany. The Tribunal had some years to cover in their judgment, and though they recited the rise of Hitler to power they could scarcely be expected to write a complete history of the period. Moreover the Tribunal refused to treat as evidence of the conspiracy alleged in the indictment any facts before November 5, 1937. So perhaps they may be forgiven for not referring to the occupation of the Ruhr in 1923 as provocation of a war in 1939.

LORD HANKEY

My Lords, if I may interrupt, I did not say that it was a provocation of the war. I said that it was what led the German people to accept the abominable régime of Hitler. That is quite a different question; it is a preliminary part of it.

LORD OAKSEY

Perhaps I misunderstood what the noble Lord said; if so I regret it. Then in dealing with the holding of the trial at all, he says (column 400): There was something cynical and revolting in the spectacle of British, French and American Judges sitting on the Bench with colleagues who, however impeccable as individuals, represented a country which before, during and since the trials has perpetrated half the political crimes in the calendar. And in spite of the specious arguments on page 38 of the Nuremberg judgment, I do not see how anyone can deny that under a cloak of justice these trials were just the old, old story—one law for the victors and another for the vanquished. My Lords, if I may say so, the noble Lord appears to be guilty of a confusion of thought in saying that a spectacle can be revolting by reason of events which take place after the spectacle. For instance, can the Berlin blockade of 1948 make the spectacle of a trial in 1946 revolting? But I am not concerned to defend the conduct of the Soviet Union since the trial; nor do I wish to. But if it was a revolting spectacle to see British judges sitting with Soviet judges, was it not revolting to accept Soviet assistance as Allies? Was it not revolting to the noble Lord himself to remain in the Government in 1941 and 1942, as I gather he did, after we had accepted the Soviet as Allies? Was it not revolting to see Mr. Roosevelt and Mr. Churchill sitting with Generalissimo Stalin at the various conferences? The noble Lord finds the arguments of the Tribunal specious. I confess that I find his arguments illogical.

I will trouble your Lordships with only one more passage from the noble Lord's speech. He said at column 401: If we were to get some of the judges from Nuremberg in a corner and ask them in private what was the attitude of one of their colleagues, I wonder what they would say? My Lords, had it not been for that unworthy suggestion, I think I could have treated the speech with the silence which I think it deserves. But that observation is equally an insult to my Soviet colleagues and to Mr. Justice Birkett and myself. I can only tell the noble Lord this: that the Soviet judges, throughout the trials and throughout all our deliberations, demonstrated their ability and their fairness.

5.18 p.m.

THE EARL OF PERTH

My Lords, I am glad that the noble Lord, Lord Oaksey, has referred to the speech made by Lord Hankey on May 5. I was unable to be present on that occasion, but there are points in the speech which I must take up, particularly because they so very clearly relate to the question of the Japanese trials. I have always agreed with the noble Lord, Lord Hankey, about the tragic results of the policy of unconditional surrender. I agree it is also a question of political appreciation, and I could not accept what Lord Oaksey said upon that point. I also agree with Lord Hankey when he said how necessary it was that these war crimes trials, both in Japan and in Germany, quite apart from Nuremberg, should have taken place much more speedily and that the proceedings should not have continued for such a long time. I do not know if your Lordships remember, but there was a Liberal committee which sat to consider the post-war treatment of Germany. I happened to be chairman of that committee, which declared in 1941 that we felt it to be of great importance that the trials of the accused should be held as quickly as possible, and that they should not be allowed to drag on for many months or, as has happened now, for years. We hoped that it might be possible to conclude the vast majority of the processes within three to six months of the signing of an Armistice. I believe those recommendations were right. I say that applies also to the Tokyo trials, and I wish that the warnings we gave at that time had been accepted.

But, my Lords, the noble Lord, Lord Hankey, did not confine himself to these two points. Had he done so, I could have supported him: but he went much further. I want to take up three of the points he raised, although some of them have been mentioned by the noble Lord, Lord Oaksey. The first in importance is his challenge to the introductory review in the Nuremberg judgment relating to the rise of Hitler. The noble Lord, Lord Hankey, admitted that it is a correct account, but then stated that it is guilty of serious sins of omission. It is not my business to defend the Nuremberg judgment—Lord Oaksey, of course, does that much better than I could possibly do—but obviously, as Lord Oaksey said, it does not purport to be a complete history of events in Germany and elsewhere between the two wars. It purports to—and does—deal solely with the rise of Hitler and his party. When the noble Lord, Lord Hankey, talks of the occupation of the Ruhr and the use of black troops in the Rhine garrison as being two of the chief causes of the rise of Hitler, he is surely guilty of the very same, or rather greater, sins of omission. I do not defend the Ruhr occupation, but I would remind the noble Lord that the French were suffering a great amount of provocation as a result of the attempts of the Germans to evade their Treaty responsibilities. The Treaty was one which I think, except for the reparation clauses, was fair and reasonable.

But surely all questions of the occupation of the Ruhr and all question of the use of black troops in the garrison of the Rhine were obliterated by the treaty of Locarno and by the entry of Germany into the League of Nations, where she received most favoured nation treatment. The noble Lord never mentioned that phase of history in his speech. And he did not mention what to my mind was a very serious and important factor—the terrible effects of the economic blizzard of 1931. The Allies suffered greatly from that too. What I particularly regret about the noble Lord's speech is that he has given his support to propaganda which is being undertaken by a certain number of Germans who wish to attribute the rise to power of Hitler and the Hitler gang mainly to the actions of the Allies between the two wars, and to try to free the German people of all guilt. I regret very much that the noble Lord has given his great authority to such a proposition.

The second point is his story of the beginning of the Norwegian campaign. I have read The Gathering Storm, and I have read the judgments on that point. Although I do not want to argue the matter at length, of the two accounts I prefer the history of the judgments to that put out by the noble Lord. I would just ask the noble Lord this one question. Does he really consider that the seizure of the "Altmark," which had 200 or 300 British prisoners on board, and the mining of the Norwegian leads can be put in the same category as the occupation by Hitler of Norway and Denmark?

LORD HANKEY

May I answer that straight away? It raises the very large question of what is aggression. The British plan was to cut the Norwegian leads, as Mr. Churchill made quite clear in the memoranda which he had published in The Gathering Storm. That operation, the operation of cutting the Norwegian leads, was a major operation of war—and Mr. Churchill explained it—because it cut off completely the German main supply of material for steel. Mr. Churchill said that, if we could do that, we should bring them very low indeed by reason of their shortage of steel, and their munitions industry would be crippled. That is what you might call a throttling operation. What the Germans said was: "We cannot afford to allow this, but we cannot stop it except by an operation on the coast line." They had no sea power and no aerodromes in the area. There was no way in which they could deal with that menace except by occupying the country. So while we were prepared to throttle them, they were prepared to invade and occupy Norway. I would point out to your Lordships that that is where the question becomes so difficult. Is it not just as bad to throttle a man as to stab him? I think if our operation was non-aggressive, theirs, which they took as the only way they could save themselves from being throttled, was equally non-aggressive. I was a member of the Cabinet at that time of the war, and we had no illusions about the matter. Everyone knew that the Germans had to do it. As I say, it is all in the memoranda published by Mr. Churchill. So my answer is quite definite that the two operations are both major operations of war, within limitations, and they are inseparable. I believe that that would be the military view.

THE EARL OF PERTH

I deeply regret the answer which the noble Lord has given because, in that case, he justifies the invasion of Belgium in 1914. I would now like to ask whether the noble Lord really holds that the trials of Archbishop Stepinac, of Cardinal Mindszenty and the Bulgarian pastors were consequential and caused by the Nuremberg trials. I really cannot follow his reasoning in that respect.

LORD HANKEY

My Lords—

VISCOUNT ADDISON

My Lords, I must ask the noble Lord to remember that he will have an opportunity of replying. The conduct of ordinary debate becomes impossible if we have these repeated interventions.

LORD HANKEY

I thank the noble Viscount very much for reminding me of that.

THE EARL OF PERTH

I was going to say that I believe the prototype of the trials to which I have referred will be found in the trials which took place in Moscow, where the accused, after being softened-up, confessed with most remarkable alacrity and asked that grave sentences should be passed upon them.

My Lords, I have said enough about that subject. May I now pass to the Tokyo trials? I am not altogether convinced that the Tokyo trials were as satisfactory as were those at Nuremberg. That is my feeling, particularly in view of the two dissenting judgments. But we must remember, and the noble Lord must remember, that though at Nuremberg it was laid down that a war of aggression was an international crime, that was by no means the first occasion on which a solemn declaration of this character was made. I will say one word about aggression—as a matter of fact I said it yesterday. It is very difficult to define, but I think everyone in this House knows aggression when it occurs. At the Assembly of the League of Nations on September 24, 1927, a formal Resolution was passed unanimously — Japan, Germany and Italy voted for it—which began with these words: Being convinced that a war of aggression can never serve as a means of settling international disputes and is, in consequence, an international crime.… Therefore I would remind your Lordships that the Governments of Japan, Germany and Italy, when they began to plan their wars of aggression—because they were wars of aggression—knew that what they were preparing was an international crime and that they would be liable to punishment as criminals.

The Japanese aggression in the Far East was planned as far back as 1932. I remember that towards the end of that year I had dinner with the chief Japanese delegate who represented his country at Geneva, Mr. Matsuoka, who later became the Minister of Foreign Affairs. At that dinner, when we were discussing the beginnings of the Sino-Japanese war, Matsuoka frankly expained to me what the Japanese plans were. They were to drive out completely from East Asia all American and European influence and establish a Greater East Asia co-prosperity sphere, to be dominated by Japan. If I remember rightly, India was to be included in that sphere. His frankness was remarkable. Your Lordships may think it rather odd, but he gave all the details—except, of course, Pearl Harbour. Of course, we had a very good dinner, and in those days my head was strong ! I said to Matsuoka, "Surely to make war on China is an odd way of starting a co-prosperity sphere." He replied, "Leave it to us. We understand the Chinese mentality completely !" I sent home an account of that conversation, because I thought it worth while.

I have told that story only to show that, to my mind, practically every Japanese in a responsible position must have been aware of what was intended, even though he did not approve. I believe, from conversations I had with one or two responsible Japanese who did not approve—there were a few—that the Emperor and his brothers were not in agreement with the policy of adventure, but, perhaps because they wanted to preserve the position of the Imperial House, they did not feel able to oppose the adventurers. Your Lordships must remember that the assassinations of sonic very "high up" men had taken place at the time.

With these preliminary remarks on the trials and sentences as a whole, I pass to the sentence on Shigemitsu. I feel that he was faced with one of those difficult choices, perhaps one of the most difficult that can confront a person who holds a responsible position, which placed him in a terrible dilemma. He was one of those not in any way a party to aggression; he did not approve of it. But I think that he was aware of what was going to happen, and I think the noble Lord, Lord Hankey, will agree with me there. In 1943 he was summoned by the Emperor to become Foreign Minister. He was a loyal and patriotic man and felt bound to accept. He hoped to be able to extricate his country from the disaster into which the adventurers had plunged her. Could he do that better by being a member of the Government and trying to exercise a restraining influence from inside, even though he risked being associated with the acts of the Government as a whole, of which he distinctly disapproved? He chose that course. I do not think that any of us are in a position to blame him for that choice. That being so, I feel that the verdict and sentence did not take sufficiently into consideration the extenuating factors. Seven years imprisonment was too much. Therefore, I would like heartily to support the plea of the noble Lord that this sentence may be revised. If and how that can be done, I do not know, but I with that both the case of Shigemitsu and the case of Weizãcker, who had found himself in a somewhat similar dilemma, could be reviewed. I hope that the noble and learned Viscount will be able to tell us that His Majesty's Government will consider whether any possibilities for revision are still open.

5.35 p.m.

LORD WRIGHT

My Lords, like others of your Lordships, I was unable to be here when the question of war crimes was discussed on the last occasion. I became aware of the discussion arranged for to-day only at the end of last week, and I was entirely unable to obtain any sight of the judgments of the Tokyo Tribunal. They had all been sent to the United Nations for their records. I saw the outside of the judgments, and they certainly presented a most alarming appearance. They were more like a library than a judgment! I gather that my noble friends Lord Hankey and Lord Perth have read them. I think it was a great achievement if they have read them, and it is certainly one I cannot claim.

The question here is, these judgments having been delivered, what can this House do in the matter? On that I want to ask my noble friend Lord Hankey a question which I am sure he will be able to answer: What power of revision of the sentences, or of anything else in the judgments of that court, is vested in anybody except General MacArthur? It turns on the constitution of the court. It is a military court which was established by General MacArthur on his responsibility as Supreme Commander in that area. I know that when I was in Japan two years ago he took a great interest in what was going on in connection with war trials. I discussed these matters with him more than once, and my impression is that the decision of this court of eleven judges was final, save that the Supreme Commander who constituted the court could revise the sentences downwards—though not up-wards—if he were so minded.

I put to myself the question which I have just addressed to Lord Hankey, and I am sorry that I am not able at the moment to answer it categorically, but only from my own memory. I hope that some noble Lord who has examined the question can give a definite answer. If the position is that no one but General MacArthur can interfere with the judgments, this House would be dealing with something which is entirely beyond their competence. On the other hand, I have no doubt that if this House felt, on a sufficient consideration of the whole position, that something was wrong, they would have the means of putting that before General MacArthur, and I am sure that he would give the greatest and most careful attention to whatever was represented to him in that way. But there I must leave the matter. No doubt it will be looked into in appropriate quarters, and if anything can be done in the way of representation to whomsoever is the competent authority, I have no doubt that that course will be duly followed.

As to the delay at Tokyo, which I think is a matter of comment, I must point out that from my own knowledge, which I obtained in 1946 when I was there, the difficulties of this trial were enormous. The difficulty of trying Japanese through interpreters on these questions of law, diplomacy and commerce would have seemed insuperable if I had not seen how it was being worked out, and if I had not known that the result had been so satisfactory. But that involved enormous delays. If I may say so, without any responsibility for it, I think a good deal of delay was caused by the well-meaning, act of the United States Government in sending out from the United States one American counsel to act for each of the defendants. Perhaps it may not appear strange that that did not tend to expedition in the course of the trial. But it was well meant, and I hope it was fully appreciated by the beneficiaries. Taking the whole thing together, although I think two years was a long time, I can understand that it turned out so, and I should not be disposed to blame anybody.

Another point which occurred to me at the time was that the prosecution were spreading their net too wide. But there again I expect I was wrong, because the proceedings in China, which started in 1931, were of immense importance in showing the general predatory and aggressive intent of the Japanese. That is not a matter to be ignored, in view of what we have heard about the finding that the Germans were guilty of a crime of aggressive war. I should like to express my sympathy and concurrence with the observations which fell from my noble and learned friend Lord Oaksey, who presided at that Court with so much distinction. He knows—and I think we all ought to realise it—that that decision, both on fact and law, has been received with almost universal applause. As to the law—the Tokyo judgment had not then been given, but I do not think there is any substantial difference between the law declared by these two Tribunals—the General Assembly of the United Nations have unanimously expressed their concurrence with the law as stated in the judgments and in the London and Tokyo Agreements. The view so expressed was that these judgments stated completely and accurately the international law on the topics which had to be discussed. Indeed, apart from a few discordant voices—which I suppose are inevitable in connection with any question of law—no one has really disputed the justness of the legal conclusions. I will not attempt to say any more about that, although I would like to say a few words on two topics.

One is the question of superior orders and the effect of superior orders as relied on by a defendant. As to that, if I may refer to the proceedings in the War Crimes Commission with which I was concerned, no one seemed at that time to doubt what the law was. The law so accepted was what was declared in the London Agreement, in the Tokyo Agreement and in the judgments. The difficulty which seems to have arisen came from the expressions of an extremely erudite lawyer, a professor at the University of Cambridge, who qualified, and indeed, denied, the invalidity of any defence based on superior orders. I will not discuss the logic or the wisdom of that. I am fully satisfied that the contrary conclusion has been upheld, and the verdict and view of the learned Professor Oppenheim repudiated.

The change, I think, came in about 1940, when someone must have detected in the Sixth Edition of that learned work Oppenheim's International Law that there was something wrong in the passage about superior orders. The editor of the Sixth Edition, which I have here, corrected that view. He said that it is difficult to regard the view as expressing sound law that superior orders would confer upon the perpetrator immunity from punishment from the belligerent. I will not read the full passage, but I only mention that so well recognised was the view which found favour in the Charter and at the Nuremberg and Tokyo Trials, and so-well-established was it, as long ago as 1924, that one of the much- criticised German courts which sat at Leipzig rejected the opinion that superior orders afforded immunity. They said: … the defence of superior orders would afford no justification where the act was manifestly and indisputably contrary to international laws—as, for instance, in the case of killing of unarmed enemies or of shipwrecked persons who have taken refuge in lifeboats.

VISCOUNT SIMON

I think it was as early as 1921.

LORD WRIGHT

Yes, it was. I am quoting from a report published in 1924. The result of that was that at long last the law was correctly stated in the Manual of Military Law, by an Amendment of April, 1944. I do not want to read that again in full, but it was clearly expressed that the order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. Undoubtedly, a court confronted with the plea of superior orders adduced in justification of a war crime is hound to take into consideration the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received. The question, however, is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of the community. There is a useful note to that. The principle, therefore, is that obedience to orders is no defence if the orders are manifestly unlawful, but that in any case of that sort a court may consider the fact of the orders by way of extenuation.

I will trouble your Lordships to imagine some of the orders which people have obeyed, later claiming that they acted in obedience to commands. For instance, I might mention the shooting of the airmen who escaped from Stalag IV, which was one of the most disgraceful breaches of military law which is recorded. Your Lordships will no doubt remember that when an order reached one of the greatest and most important men at the German war office, ordering the slaughter of Commandos, he objected to it. Keitel said: "Well, your objection would have been perfectly good under the old ideology, but this is a new ideology." I think the Tribunal trying Keitel held that they had to take into account that act of Keitel in passing on the order with his authority. I wanted to mention that only because I think it would be very unfortunate for the future history of international law if any doubt were cast by this House upon that question.

The only other matter I want to mention is this. We are constantly told, by way of criticism of these Tribunals which have dealt with war crimes, that it is conqueror's law. I confess that that seems to me a very unfair and irrelevant consideration. The only questions are: Did the man have a fair trial? Were the facts properly put before the court; and did the court impartially come to the best view it could? If it is wrong, of course, it is wrong. But to condemn a judgment merely because the court has been appointed by, or consists of, individuals belonging to the belligerent forces, is quite unsustainable: the test is impartiality. There are two classes of courts which have tried crimes and are competent to try war crimes. One is the national court of the country in which the crimes have been committed during the period of the occupation and then, when the occupation ends, if the offender can be brought into custody he can be tried by the national law of the country, with such modification as international law requires, usually in the interests of the defendant. The other class of case is the military court, and the justification of military courts was examined at great length a few years ago by the Supreme Court of the United States. The conclusion at which they arrived was undoubtedly sound, and it was that, in the traditional method of trying war criminals, the court has jurisdiction if they come within the custody of the belligerent who desires to try them. In the case of the Japanese and of the Germans, of course, the act of surrender, or the armistice, contained provisions for the surrender of criminals and, in the case of the Japanese, for their surrender for trial.

5.58 p.m.

LORD SEMPILL

My Lords, it is a privilege to speak in full support of the Motion submitted by my noble friend Lord Hankey. Had I been present during the entire debate in which he participated some two weeks ago, I would certainly have supported him in regard to his main contention in relation to war crimes. With the noble Lord, Lord Hankey, we all regret the absence of the noble Lord, Lord Killearn, from this debate. He is now in the Far East. Lord Killearn's experience in the Far East extends over four decades, during which time the record of his vital work is writ large in history. My noble friend has asked me to apologise to your Lordships for his absence and, with permission, to make known his views on one aspect of this Motion—that touching Mamoru Shigemitsu, the last Japanese Ambassador to the Court of St. James. Lord Killearn does not feel he could enter, at least through a third party, into the wider aspects of the question raised by Lord Hankey, but he wishes to join with the mover of the Motion and others of your Lordships in praying that something should be done with regard to Mamoru Shigemitsu.

The noble Lord, Lord Killearn, writes as follows: I was one of the ex-Ambassadors who, at the time of the trial and with the approval of the Foreign Office, put in a statement on his behalf in the following terms. This document starts with the usual preamble and continues: … hereby certify that Mr. Mamoru Shigemitsu was well known to me when he was Japanese Minister to China. In the spring of 1932, when fighting broke out in the suburbs of Shanghai between the Japanese and Chinese forces, I, with other neutral colleagues, endeavoured to put a stop to hostilities and to prevent them spreading, and to this end arranged meetings attended by both Japanese and Chinese representatives. On the Japanese side Mr. Shigemitsu from the outset co-operated whole-heartedly, and much of the credit for reaching an agreement was due to his persistent efforts and patient co-operation. When agreement had been signed he was unfortunately seriously wounded in a terrorist outrage. Despite the fact that he was in severe pain, he refused to allow his injuries to hold up the signature of the agreement, which was accordingly taken to him in hospital where he signed it. That was the deposition made by Lord Killearn, with the permission of the Foreign Office.

In his personal letter to me he continues: Throughout my association with him—and it was particularly close—he expressed repeated and, to the best of my belief, genuine wishes for collaboration with the Western Powers. His influence, was I believe, in general directed towards moderation: and we all felt at the time that it was a great misfortune when he was moved from China and his restraining advice was no longer available there to guide Japanese ambitions in China into useful and constructive channels. Like many others who knew him, I was shocked when I heard of the sentence of seven years in prison pronounced by the court. My Lords, I, too, am one of the many who knew him and who were shocked by this sentence. I have worked for several years in Japan and can claim an active experience of some three decades of Far Eastern affairs, political as well as commercial. I have spoken more than once with most of the Japanese statesmen on the political map between 1921 and 1939, and one or two became close friends: in particular Mamoru Shigemitsu, a great Samurai, who later became Ambassador in London. For years my noble friend, Lord Hankey, and I, with the late Lord Lloyd, General Piggott and others, worked in an endeavour to re-create the spirit of the Anglo-Japanese Alliance, so far-sightedly conceived by a great Prime Minister, the grandfather of the noble Marquess who leads the Opposition in your Lordships' House. A number were with us, here and in Japan, in this ideal; and without a doubt His Excellency Mamoru Shigemitsu was always in the lead in endeavouring to re-create the spirit of that splendid instrument the Anglo-Japanese Alliance, that bound the two Island Empires together and, as history shows, helped the security of each.

I submit, with all the respect due to your Lordships' House, that these trials and all that devolves therefrom should be annulled, and that we should return to more normal conditions with greater rapidity. I feel that the trials are making a knotted whip for posterity. I pray, therefore, that His Majesty's Government will listen to those who join, as I do, with my noble friend, Lord Hankey, to secure the early release of one who worked without stint to avoid war between our respective countries.

Your Lordships will remember that His Excellency Mamoru Shigemitsu worked in an atmosphere best described by Mr. Winston Churchill in Volume I, Chapter II ("The Follies of the Victors") of The Second World War. The passage runs: The annulment of the Anglo-Japanese Alliance cause a profound impression in Japan, and was viewed as the spurning of an Asiatic Power by the Western world. Many links were sundered which might afterwards have proved of decisive value to peace.

6.6 p.m.

LORD WINSTER

My Lords, I support the Motion and speech of the noble Lord, Lord Hankey, in so far as it relates to the sentence passed upon Mamoru Shigemitsu. I support it with this reservation: that, as has been pointed out several times this afternoon, papers in this matter are not accessible. Therefore I must reserve a final opinion until I have heard what the noble and learned Viscount: who sits on the Woolsack has to say on the matter. What I have to say will be confined to this particular question; I have nothing to say about the occupation of the Ruhr or about the invasion of Norway. As regards Nuremberg. I would say only this: I took a particular interest in those trials, which I endeavoured to follow as closely as a layman could. I also had the opportunity of visiting Nuremberg while the trials were in progress. I came away with an overmastering impression that while, quite properly, there was an atmosphere of great sternness in that court, at the same time, complete fairness was shown to the defence; and every possible latitude was given to the defence in the presentation of their case. I also came away with a feeling of great admiration for all the representatives of the Allies who were participating in the trials—and, may I say, not only of admiration but also of great pride in our own representatives who took part in those proceedings.

On the general question of war trials, I would say that I do not think the British find such trials very congenial. As a race we are not good haters, and we have an ingrained partiality for "calling it a day" when the contest is over. I should say that the general British view about these matters, so far as I hear it expressed, is that where there was an absolutely clear cast it was quite right to proceed, but that if any doubt whatever existed we should let the matter go, and on no account try to strain anything. Above all, I have always found that public opinion has immensely disliked delay in reference to these trials. Any long drawn-out deity is extremely repugnant. There has also been, I think, a vague general uneasiness in the matter. I speak, of course, as a complete layman, but I feel that these war trials have involved many points of law, and many novel points of procedure; and that fact also has given rise to a certain amount of uneasiness. For these reasons, in the matter which we are discussing this afternoon, the sentence upon the former Ambassador to this country, or in similar cases, I am sure that, if it is possible for any clemency to be shown, public opinion will desire it to be shown.

In the case of Shigemitsu, condemned for waging a war of aggression—which is a charge which must surely involve many peculiar constitutional points—it seems to me that there is a great deal of evidence to show that he did try, by all means in his power, to keep his country out of the war. He tried hard to avert war. Moreover, what we have heard this afternoon shows that in circumstances of great difficulty he did make an effort—I should say a very courageous effort—to do something about the treatment of the prisoners of war in Japan. When he was tried, there were long and weighty minority judgments pronounced in his favour. We have also heard that reputable organs in the American Press—and the American Press are not likely to be prejudiced in favour of any Japanese on trial for war crimes—expressed their uneasiness about the verdict. It is clear that the President of the Court also felt some uneasiness. There has been the testimony to which we have listened this afternoon from several members of your Lordships' House. I feel that all these things go to show that there is a large and varied body of opinion which is not really happy that justice was done in the case of Shigemitsu. I say that recognising, of course, that the majority judgment was to the contrary effect. I would not wish to criticise or attempt to controvert that majority judgment, but at the same time I feel that we cannot entirely ignore the weight of the minority opinion. In the light of the information that we have had about this matter, I must say that I feel uncomfortable about it. I am quite sure that there are a large number of people who also feel uncomfortable.

The noble and learned Viscount who sits on the Woolsack, if he will allow me to say so, while a stern upholder of justice would be the last man to have any sympathy with harshness or vindictiveness. I hope that in his ministerial official capacity he may be able to say something to us this afternoon in favour of clemency in this matter. Of course, in this our Government are not free agents. Other Governments have to be considered. The noble and learned Lord, Lord Wright, has raised the question of who possesses the power of remission. That is a matter into which I cannot enter, but I feel sure that any expression of opinion, however moderate or however light, by our Government, from our Government spokesman, in favour of clemency in this matter would have very great weight indeed. If our Government expressed a willingness to reconsider this matter, I feel sure that the ways and means of doing so would speedily be found.

I feel all the more strongly upon this point because I think that the future in matters where this country is concerned in the Far East is very anxious and delicate at the present moment. In relation to the Yangtse incident, we heard a great deal about what was called "loss of face." In view of the courage and devotion to duty and discipline shown by ships involved in that episode, I am not very worried about any loss of face in this country in that regard; but I think that what is called "face" in the Far East largely depends upon the British reputation for humanity, for fairness and for justice. If, on our suggestion, clemency can be shown in this matter then I am sure that the result will redound greatly to our credit and to our reputation in Far Eastern countries.

6.15 p.m.

THE LORD CHANCELLOR

My Lords, I propose to reveal some facts to your Lordships which I think may alter the opinion which some of your Lordships may have formed on most inadequate evidence or, sometimes, on no evidence at all. Before I come to those facts, I will say just this one word about the Nuremberg Trial. On the previous occasion, I ventured to call the attention of the noble Lord, Lord Hankey, to the fact that, before making those attacks (for attacks they were) on the judges at Nuremberg, he might, following our usual practice, have intimated to the noble and learned Lord, Lord Oaksey, that he intended to do so. The noble Lord, Lord Oaksey, was actually in this very Chamber when the noble Lord started his speech. Therefore, it would have been easy for him to indicate that he was going to make those attacks. But he did no such thing. What I think of the noble Lord, Lord Hankey, is this: I think he is one of those well-meaning theorists who go about trying to get facts that fit his preconceived theories. If that is not so, I would suggest that, had he not only given the noble Lord, Lord Oaksey, notice of what he intended to say, but found out from Lord Oaksey what he thought about these various matters, he would have discovered that Lord Oaksey was very approachable; and he might have obtained authentic information from the noble Lord.

The second point I found out about the noble Lord, if he will forgive my saying so—for he spoke frankly, and he must not mind if I speak frankly—is the extraordinary inaccuracy of his statements. I give one illustration of that, and will then leave the Nuremberg judgment. In dealing with the Nuremberg judgment, the noble Lord, Lord Hankey, in effect, asserted that the German occupation of Norway was not unnaturally in consequence of what we were doing, and was thereby justified. He said that the Nuremberg judgment had made no reference to that proposition. If he had read as far as page 29, which is quite early on in the judgment—

LORD HANKEY

I read it all.

THE LORD CHANCELLOR

I read these four sentences from the Nuremberg judgment: It is, however, to be remembered that the defendant Raeder's Memorandum of 3 October. 1939, made no reference to forestalling the Allies, but it is based upon the aim of improving our strategical and operational position. The Memorandum itself is headed The Gaining of Bases in Norway.' The same observation applies mutatis mutandis to the Memorandum of the defendant Doenitz of the 9 October, 1939. Futhermore, on the 13 March, 1940, the defendant Jodl recorded in his diary 'Fucker does not give order yet for "W"'—that is the Weser exercise. 'He is still looking for an excuse (justification?)' On the. 14 March. 1940, he again wrote 'Fuehrer has not yet decided what reason to give for Weser exercise.' In the face of that, it seems to me that nobody can say that our conduct in Norway was the urgent excuse for the German attack in Norway. If the noble Lord had taken a little care, he must have known that to be absolutely untrue. I have finished with the Nuremberg trial.

In regard to Japan, again we had a most distinguished judge. In this case I was asked to suggest a judge and I thought it would be right to go to Scotland, because the contribution Scotland has made to our jurisprudence is immense. I personally like to think that in my life at the Bar I learned more law from, I think, the greatest judge who ever practised here who was a judge from Scotland. I ascertained that there was available to undertake this task a judge of great distinction—for I wanted to find for this task somebody as much like Lord Oaksey as I could; I found Lord Patrick, and Lord Patrick was willing to go out. I, for my part, resent the attacks which Lord Hankey has made on Lord Oaksey, and I resent the implied attack he has made on Lord Patrick. I rely profoundly on Lord Patrick's judgment, and to speak, as Lord Hankey did, about vindictiveness and so on, is completely out of place, when he knows, or should know, that Lord Patrick formed one of the majority who gave this decision. Whether Lord Hankey has read the majority judgment or not I do not know, but judging from his speech he seems to have confined himself to the minority judgments. At any rate, as I will point out in the course of the next few minutes, if he has read it at all he seems to have failed completely to apprehend what the case was all about.

Before I come to the details of the case, I would like to brush aside one or two small matters. With regard to documents, the verbatim account of evidence—remember, this trial lasted two years—consists of 48,000 pages. There is at the Foreign Office Library a pile of double-spaced foolscap, thirty feet in height. The noble Lord has access to it, as of course have other noble Lords. I see no reason whatever for having that copied and placed in the Library of this House; I do not think the task would be in any sense justified. But the judgment is here. I have it in various volumes. There is the majority judgment of 1,600 pages, the dissenting judgments, comprising the Indian judgment of 1,235 pages, the Dutch of 249 pages, and the French of 25 pages—I noticed Lord Hankey quoted rather extensively from the French—and there are a further twenty-two pages of dissenting judgment. Those altogether amount to 1,531 pages. What I will do is to arrange for the 1,600 pages of the majority judgment and the 1,531 pages of the dissenting judgments to be placed in the House of Lords Library, and at a later stage I will consult with my right honourable friend, the Foreign Secretary, as to whether there is a case for having all this printed.

I was asked this further question: Are there to be any further trials? The fact is that the Far Eastern Commission decided on February 24, 1949, that there shall be no further international military tribunals, and recommended to the member nations that the investigation of minor war crimes should be completed by the end of next month; and that is dated this month, May, 1949. So much for those questions.

Now let me explain how the trial arose. The trial arose out of the Potsdam Declaration of 1945 that "stern justice shall be meted out to all war criminals." The Charter under which the trial took place was agreed to on January 18, 1946. The Tribunal was to consist of not less than five and not more than nine members—that was later increased to eleven members. Article 5 of that Charter gave power to try persons who, as individuals or organisations, were charged with offences as follows: (a) crimes against peace, such as the waging of a declared war of aggression; (b) violation of the customary laws of war; and (c) crimes against humanity. The Charter, which should have been the judges' Bible, as it were, directed that persons participating in a common plan were to be responsible for anything done by others in pursuance of that plan. That is provided in the Charter. It is further stated—and this is perfectly good law—that the fact that any particular defendant acted under orders, though relevant to the question of the extent of his punishment, is not relevant on the question of his guilt. Accordingly, in April, 1946—again there was no delay—the indictments were served and the trial then proceeded for the better part of two years, and judgment was delivered at the end of 1948.

The Charter provides for a review by the Supreme Commander who, of course, would consult (and this is so provided) with diplomatic representatives of the various Powers. The Charter provided for no other form of review at all. In fact, the Supreme Commander did review these trials, awaiting for that purpose representations from all the various countries concerned, and he confirmed the decision in toto. No further review is possible unless, of course, the various nations like to agree amongst themselves, in which case they can obviously agree to anything. But it is not possible for one nation to arrange for a re-trial; it could be done only by common consent of the eleven nations concerned. They have had their review; that review has been discharged.

Notwithstanding that difficulty, if I felt that injustice had been done, or even that there was a grave risk that injustice had been done, I should not hesitate to see if I could initiate steps to bring about a re-hearing or another review. But as I feel no such thing, as I see no reason whatever to doubt the fairness of the trial or the accuracy of the conclusions that were come to, I, for my part, shall do nothing whatever, nor will this Government, to attempt to initiate a review either of the sentence with regard to Shigemitsu or the sentences with regard to the others.

I pass to consider the case of Shigemitsu, because if I satisfy your Lordships with regard to his case, all the others are quite obviously a fortiori cases. Let me therefore consider that case. First, your Lordships will remember him as Ambassador here. He left this country and went as Ambassador to the puppet Government of China in 1941, and in April, 1943—and the date is a little important—he became Foreign Minister. My Lords, as Sir Henry Wootton, I think, once said, "An Ambassador is an honest man who is sent abroad to lie for his country." Perhaps it was right that the Tribunal should have found Shigemitsu not guilty in respect of all his activities whilst he was over here. But when I heard Lord Hankey, who sent out testimonials of character, speaking of this man, talking of his "aura of integrity"—that was one phrase I believe he used—I was staggered. I will read to your Lordships one telegram—not that I am questioning the fact that Shigemitsu was found not guilty in respect of his work as an Ambassador: an Ambassador must have great latitude. Here is a telegram from Shigemitsu to his Foreign Secretary, Matsuoka. It is dated August 5, 1940—that was just about the time he was having these discussions with the noble Lord, Lord Hankey, and the telegram was sent from London. It reads: … in order to establish our position in Greater East Asia it would be necessary to consider measures for gaining the maximum benefits at the minimum loss by carrying them out at the direct expense of small nations (for instance, France and Portugal, although indirectly it may turn out to be at the expense of Britain and America) and by avoiding conflict with other countries so as not to make many enemies at once but to dispose of them one by one. That man, you see, advocated hitting first at the "little ones." He included France in that description, France being then occupied and unable to defend herself. This is the man whom we are asked to think of as possessing this "aura of integrity."

He joined the Cabinet in April, 1943. That Cabinet was waging aggressive war. May I tell the noble Lord, Lord Hankey, that aggressive war does not cease to be aggressive war because you cannot define it? You cannot define a pretty girl but, thank God, pretty girls exist! Does anybody doubt, does the noble Lord himself doubt, that Pearl Harbour, for instance, was aggression?

LORD HANKEY

This was long after Pearl Harbour. Pearl Harbour was in December, 1941.

THE LORD CHANCELLOR

Of course, it was. This was in 1943. I am trying to point out to the noble Lord that if Pearl Harbour was aggression, then he admits that there can be such a thing as aggression, even though he cannot define it.

The next doctrine which the noble Lord develops, and it is an extraordinary doctrine, is that aggression ceases to be aggression because, in fact, it does not pay. When Japan began to lose, when she began to find that she had "bitten off more than she could chew," her warlike activities were still in pursuance of a war which started as—and indeed was—a war of aggression. Shigemitsu, as I have said, joined the Cabinet. He is said to have joined to end war and to promote peace. That is said. But by whom? Not by Shigemitsu. No doubt it is said in some of those newspapers in America which the noble Lord has been reading. But it was not only for that that Shigemitsu was convicted. He was Foreign Minister, and as Foreign Minister he had direct responsibility for seeing that treaty obligations which his country had entered into were observed.

Countless protests were made to him about the shocking brutality going on in prisoner-of-war camps. And that is a matter about which I am going to tell your Lordships something. We must not be mealy-mouthed about this business; I will tell you what it was in due course. Time after time the Swiss Minister—Switzerland was, of course, the protecting Power—asked for the right to inspect, a right which was granted by the Hague Convention, to which Japan had put her hand. Time after time Shigemitsu refused, finding, sometimes, specious excuses. In one case, when the Americans made a very specific complaint on December 12, 1942, he delayed his answer till April 24, 1944. In his interrogation before trial he was forced to admit that he strongly suspected that things were very wrong indeed. And yet when, at last, he did reply to complaints by the United States Government he said that they were "distorted." He rejected our complaints on October 3, 1944, in regard to the health of the prisoners who were labouring on the Burma-Siam railway—and to place those prisoners on that railway was, in itself, a breach of the conventions of war because it was a military work. He said this: The Imperial Government, by exercising great vigilance as to the health and hygiene of prisoners of war, takes added measures such as monthly medical examinations of each prisoner-of-war camp to enable sickness to be treated in the first stage. I now read a passage from the majority judgment—perhaps the noble Lord, Lord Hankey, did not get so far as this: The facts stated were entirely false, as the prisoners had not received medical attention and had been dying by thousands from beriberi, cholera, malaria and other tropical diseases. Of the 40,000 prisoners there, at one time, 15,000 were sick and the number was put as low as 15,000 only because those suffering from malaria, beri-beri and dysentery were made to work and were counted among those who were still well. Matters were the same at other prisoner-of-war camps, and it is clear that this was no mere instance of individual brutality on the part of incensed soldiers—it was planned from above. We captured from a Japanese Division in Burma on August 6, 1943, a book entitled Notes for the Interrogation of Prisoners of War. This is an extract from that book: Care must be exercised when making use of rebukes, invectives or torture, as it will result in his telling falsehoods and making a fool of you. The following are the methods normally to be adopted: (a)Torture which includes kicking, beating and anything connected with physical suffering. This method to be used only when everything else fails, as it is the most clumsy one. Then came this marked passage Change the interrogating officer when using violent torture and good results can be had if the new officer questions in a sympathetic manner. (b)Threats. Hints of future physical discomfort—for instance, torture, murder, starving, solitary confinement, deprivation of sleep. That book showed us what sort of thing was going on, and we sent a copy of it to the Swiss Legation. The Swiss Legation sent it to Shigemitsu. So he had no excuse for saying that he did not know the sort of thing that was being done.

I say this to your Lordships; if this man, in the position of Foreign Minister of his country, knowing that these things were going on, refused to allow inspection of camps, which would have revealed them in breach of the Treaty obligations, can it be said that he was not guilty of gross breach of international law and of crime? Whether he did know, or whether he merely suspected, was a matter for evidence; and particularly for his evidence—which he did not give. But at least he knew that the Government which he joined had passed laws, or regulations, authorising the execution of the American airmen—the Doolittle Flyers—although this was absolutely against international law.

That was the Government he joined, and the majority judgment quite early on—it is at page 32—says this Department officials having knowledge of ill-treatment of prisoners are not responsible by reason of their failure to resign; but if their functions included the administration of the system of protection of prisoners and if they had or should have had knowledge of crimes and did nothing effective, to the extent of their powers, to prevent their occurrence in the future, then they are responsible for such future crimes.

LORD HANKEY

"To the extent of their powers."

THE LORD CHANCELLOR

That seems to me a perfectly sound doctrine. The inference that Shigemitsu knew what was going on is irresistible. The atrocities were on a vast scale and followed a common pattern. The Japanese Military Police, the Kempeitai, were most active in inflicting these tortures. The Army and the Navy Units followed the same methods. The local police forces also applied the same methods; and the chiefs of prisoner-of-war camps were actually brought to Tokyo and given a course of instruction on how to administer torture. They were shown how to fill a man with water and then, when his stomach was completely distended, jump on his stomach. Hundreds of our boys were killed in such ways. There was the electric shock, which was applied to sensitive parts of the body. Then there was burning, sometimes simply by cigarette ends, but other methods were also employed. There was the knee-spread, flogging and vivisection. If the noble Lord will read the judgments, he will find that medical officers in charge of divisions, when they received British flyers, stripped them, tied them up and then, in the presence of young medical officers, vivisected them. In one case a medical officer cut out an airman's heart. One witness said in his diary, "It was most instructive." In another case they cut out an airman's liver. Allied airmen were saturated with gasolene and burned alive by order of an army commander. On the Burma-Siam Railway the instruction was: "Men are of no importance. The construction of the railway has to go on for operational purposes and has to be finished within a certain time, at all costs, irrespective of the loss of lives of British and Australian prisoners."

At the same time, in September, 1943, the Prisoner-of-War Information Bureau in Tokyo received official information from the Prisoner-of-War Commandant in Thailand showing the vast number of prisoners who were dying. Finally, when they thought the Allies might come and vengeance might be taken upon those who were guilty of these horrible and inhuman acts, this Government promulgated an order advising those in charge of these camps to run away and get lost. Whilst all that was going on, this man, Shigemitsu was Secretary of State for Foreign Affairs in Japan. He had to deal with the Swiss Government which was the protecting Power. He himself admitted, in interrogation, that he had grounds for strongly suspecting that things were very wrong. If the Tribunal had been satisfied that he had done what he could, that would have been a most relevant fact; but they were not so satisfied. I do not pretend I have been able to read all of these judgments, but I have read extracts from all of them. And I am bound to say that I should not feel it in accordance with my duty or my conscience to take any step on behalf of the Government for a review of the sentences on these men and, in particular, the sentence passed on their Foreign Minister, who was primarily responsible for the international relations with the protecting Power, because I believe that if he had made an inspection it would have probably revealed these horrible things.

6.45 p.m.

LORD HANKEY

My Lords, when a speaker begins by abusing me, that does not worry me at all: it runs off me like water off a duck's back. I regret not having been able to give notice of my intention to raise this matter, but it arose from the peculiar circumstances of my life. I have to go once a week to Paris, and in that particular week I did not get back until Wednesday morning, the debate being on Thursday. I had originally intended to raise the question of the Tokyo trials with that of the Nuremberg judgment a fortnight ago, but it was only on the Friday that I learned that that was impossible. On that Friday I found I had to recast the whole of this very difficult speech, involving a great deal of work, into a speech on Nuremberg. I was away on Sunday, Monday and Tuesday, and came back from Paris, bringing a typescript of my speech with me. I came down to the House on Wednesday to try to find out who was going to speak. I did not learn then that the noble and learned Viscount the Lord Chancellor was going to speak. Nobody said a word about that. I did not know that until Thursday. So I could hardly have sent the noble and learned Viscount notice. I did speak to the noble Lord, Lord Henderson, who was to reply on the Thursday, when I had in mind taking Tokyo and Nuremberg together. Altogether it was a chapter of accidents which I deeply regret. Even when I arrived back on the Wednesday morning, I had a Government Committee which lasted the whole morning. As to giving notice to the noble Lord, Lord Oaksey, I am sorry to say that I was not introduced to the noble Lord until to-day, and I did not know him by sight. If I had seen him in the House, and known who he was, I certainly would have spoken to him about it.

I thank the noble and learned Viscount the Lord Chancellor for the trouble he has taken in this matter, but I am sorry to say he has completely disappointed me in what he has said. He has surprised me, too. I shall not go much into the question of Norway, because I have already said something about that, but there is one fact which has been overlooked by all of us. On September 2, before we were in the war, the Germans told the Norwegians that they were going to respect their neutrality. But in telling them that, they warned the Norwegians most seriously that if anyone else violated that neutrality, they would hold themselves free to take necessary measures. So when we did commit what I agree was a minor breach of Norwegian neutrality on February 6, the Germans naturally backed up that view, and on February 20 Hitler told the General in command to get on with it. On March 1, the German Führer decided to go in. They had a very good excuse when the Norwegians protested against our mining those fjords. I will not pursue that further. Norway was very important to us both, and of enormous value defensively, as well as offensively. We wanted to cut the line, and the Germans wanted to prevent the steel line being cut.

The Lord Chancellor resented my implied attacks on Lord Oaksey and Lord Patrick. I certainly had no intention of attacking either Lord Oaksey or Lord Patrick. After all, the decisions were made, I assume, by the Tribunal. In Lord Patrick's case the Tribunal consisted of eleven people, so there was there a great deal of give-and-take. Lord Patrick was ill a great deal of the time, I am sorry to say (I am not sure that he has recovered yet), and that would necessarily make him rather less mobile than would be desirable. I am certain that what the Lord Chancellor says about him is true, and if he had been able to get about more easily I am sure that he would have been better able to pull his weight in that case.

On the question of Papers, I thank the noble and learned Viscount the Lord Chancellor for having gone some way to meet me. I understand he is willing to place a certain part of these judgments in the Library, and he will discuss later with the noble Lord, Lord Henderson, whether some of it should be printed. I think he said there would be no more international Tribunals in Japan and I thank him for that. I did not criticise the length of the trials, although the Lord Chancellor seemed to think I did. I said that I quite understood the difficulties, because there were so many judges and so many prisoners. My international experience, though very wide, does not extend to these Tribunals, but it does enable me to know that when a large number of people are concerned it is much more difficult and takes much longer to handle the whole business, especially when there is a great deal of interpreting to be done. On that point we are agreed.

The next point is that the Charter provided for no review, as I understand it. My main criticism of these trials is that they were wrong from the first; they were an enormous mistake of policy. I think it is a grave reflection on those who drew up these Charters that they did not provide any means for review. On the other hand, the Lord Chancellor says we could initiate a review—possibly, as I suggested, with the other ten nations, if we could induce them all to agree. I hoped he was then going on to say that in the case of Shigemitsu he would recommend a review. But he did not. The Lord Chancellor has made a strong case against Shigemitsu, but the very vehemence of the case he made enabled me, as I thought, to see the weakness of it.

I have not read all the documents, but I have read every part relating to Shigemitsu that I could. The whole of my point, which the noble and learned Viscount seems to have overlooked, was that the responsibility for these horrible things lay with Tojo, that tough soldier, and with the people working under him. It did not lie with Shigemitsu. Shigemitsu was a Foreign Minister, a contemptible civilian who could not get at the facts; and, even if he could get at the facts, he had no official duty, except to act as a post office. That was his official duty—to receive the protests and to pass them to the appropriate departments, where they were handled by this prisoners-of-war committee presided over by Tojo, who had all powers of decision. They then came back from that department with the answers. I have no doubt that Shigemitsu was horrified. But there he was, in a frightful atmosphere, and he was trying to work for peace, which would have ended the whole business.

That answers the whole of this case about the prisoners. It is horrible, and I have no desire to conceal it. What I say is that Shigemitsu had moral responsibility but no legal responsibility for it. I tried to show from evidence given that he did all he could to fulfil that moral responsibility, though his great hope, of course, was to end it all by getting peace. The Lord Chancellor said nothing about Tojo and Koiso, and not Shigemitsu, being responsible. It is true that Shigemitsu refused to allow visitors, but that was the order he received from the responsible department. Under the law he had no alternative. I noticed—and I ejaculated, almost at the danger of an interruption—that the Lord Chancellor used the words, "to the extent of their powers." I think Shigemitsu did all he could to the extent of his powers.

THE LORD CHANCELLOR

The judges thought he did not.

LORD HANKEY

I read more of the majority reports than I did of the minority, though I perhaps quoted rather more of the minority which said he did: and I thought their case was very strong indeed. The House is so empty now that it is no good my challenging a Division. If the House had not been so empty I certainly should have done so. We are very unlucky in these war crimes debates; we always get put off very late. I think this question will have to be gone into further. I shall not reply to the other speakers, because they have all gone, and I feel that there is no alternative for me but to ask leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.