When Mercy Seasons Justice: What Happens to

Intermediate Actors in the Chain of Command

On 18 April, 1942 B-25 medium bombers launched from the U.S. Navy aircraft carrier hornet bombed several Japanese cities. Eight crew members from those planes were captured by Japanese forces in China. The raid, while it caused little substantive damages, greatly embarrassed the Japanese government.

On 13 July, 1942, The Japanese Vice Minister of War issued Military Secret Order 2190:

An enemy warplane crew who did not violate wartime international law, shall be treated as prisoners of war, and one who acted against the said law shall be punished as a wartime capital crime.

Following receipt of that Order, the Assistant Chief of Staff of Imperial Army Headquarters dispatched it to the Chief of Staff of the Japanese Expeditionary Force in China. He attached a Memorandum which stated:

In regard to Military Secret order No. 2190 concerning the disposition of the captured enemy airmen, request that action be deferred ...pending proclamation of the military law and its official announcement, and the scheduling of the date of execution of the American airmen.

(Emphasis added).

On 13 August, 1942, Shunroku Hoto, Supreme Commander of the Japanese Forces in China promulgated Military Order No. 4, which became known as the "Enemy Airmenís Act". That law, which was in part ex post facto, provided that:

Article I: This law shall apply to all enemy airmen who raid the Japanese homeland, Manchukuo, and the Japanese zones of military operations, and who come within the areas under the jurisdiction of the China Expeditionary Force.

Article II: Any individual who commits any or all of the following shall be subject to military punishment:

Section 1: The bombing, strafing, and otherwise attacking of civilians with the objective of cowing, intimidating, killing or maiming them.

Section 2: The bombing, strafing or otherwise attacking of private properties, whatsoever, with the objectives of destroying or damaging same.

Section 3. The bombing, strafing or otherwise attacking of objectives, other than those of military nature, except in those cases where such an act is unavoidable.

Section 4. In addition to those acts covered in the preceding three sections, all other acts violating the provisions of International Law governing warfare.

* * * * * *

Article III Military punishment shall be the death penalty [or] life imprisonment, or a term of imprisonment for not less than ten years.

* * * * * *

This military law shall be applicable to all acts committed prior to the date of its approval.

(Emphasis added).

The eight prisoners had signed confessions, written in Japanese, and untranslated into English. After trial without the benefit of independent counsel or a translator, all eight, were sentenced to death in a trial record which found that while attacking Japan they "suddenly exhibited cowardice when confronted with opposition in the air and on the ground, and with the intent of cowing, killing and wounding innocent civilians, and wrecking havoc on residences and other living quarters of no military significance whatsoever, together with other planes did carry on indiscriminate bombing and strafing, thereby causing the death and injury of about ten civilians and the destruction of numerous residences."

The sentences of five of the prisoners were commuted to life imprisonment. On 14 October, 1942, the other three were executed.

On 27 February, 1946 Lieutenant General Shigeru Sawada, 13th Army, Commanding General, Captain Ryuhei Okada, a member of the trial court, Lieutenant Yusei Wako, the prosecutor, and Captain Sotojiro Tatusta, the prisoner warden and official executioner were arraigned before a United states Military Commission. The defense, which included U.S. Army JAG appointed defense counsel, and three Japanese civilian lawyers, raised, inter alia, the same superior orders argument made and rejected at Nuremburg. The prosecution argued strenuously for the death penalty against all four defendants.

On 12 April, 1946, the Commissioned issued its verdict:

The offenses of each of the accused resulted largely from obedience to the laws and instructions of their Government and their military superiors. They executed no initiative to any marked degree. The preponderance of evidence shows beyond reasonable doubt that other officers, including high governmental and military officials, were responsible for the enactment of the Ex Post Facto "Enemy Airmenís Law" and the issuance of special instructions as to how these American prisoners were to be treated, tried, sentenced and punished.

The circumstances set forth above do not entirely absolve the accused from guilt. However, they do compel unusually strong mitigating consideration, applicable to each accused in various degrees.

Sawada, Okada and Tatsuta were sentenced to five years, and Wako to nine years, confinement at hard labor. The penalties caused a firestorm of protest in the United States. Nevertheless, the verdicts were confirmed.

Authorís Note: At this time the sole source for the information discussed above is Carroll Glines, Four Came Home, Van Nostrand, Princeton (1966). The author is currently researching the trial record for a more extensive discussion.