Judicial Murder? (Paperback) | Released: 24 Nov 2013

This book is concerned with the issue of power and the manner and form of its exercise in Japan between the fall of the last Tokugawa Shogun and 7 December 1941, and in American military commissions, and before and by the International Military Tribunal for the Far Eastwhich sat in Tokyo between April 1946 and November 1948, and by General Douglas MacArthur in December 1948, when he gave the order which resulted in the killing of Koki Hirota, well after the Pacific War had concluded. Koki Hirota, former Premier of Japan, was charged, together with 27 others, of having conspired to commit war crimes, crimes against peace: and murder. The thesis examines aspects of the rich traditional culture of Japan, its religions, its philosophies and methods of government, and the means whereby cabinet government functioned in the decade prior to 7 December 1941. It also examines the issue of the jurisdiction of the Tribunal established to try him and the review process undertaken thereafter by MacArthur. In order to ascertain the ambit of the powers said by MacArthur to have been lawfully invoked by him. The book explores the history of military commissions in America and the exercise by him of powers sufficient to allow him to issue orders for the execution of a civilian who took no part in the government of his country at the commencement of, or during the Pacific War. Conclusions Hirota acted within power, within the constraints of his country's political processes, and was subject in international law only to the municipal laws of Japan. He committed no war crime. If he conspired with any-one it was in what he believed were in the best interests of his Emperor and Japan. The Tribunal established by MacArthur was not an international court of any kind. It was convened to administer punishment to people who the Allied governments believed to have been guilty of war crimes. It rendered judgment as might have been anticipated. It acquitted no-one. In ordering the execution of Hirota, MacArthur acted in a manner consistent with the arbitrary procedures established by American military commissions. But by following that procedure he placed himself outside the protection in law afforded to an ordinary soldier who kills during a war. Only municipal law can confer defenses open to one who kills another. MacArthur neither had nor could he exercise, any of the judicial power of America. He neither had nor could he exercise any of the judicial power of the Emperor of Japan The killing of Hirota by MacArthur was not an act lawfully authorized, justified or excused by law.
About the Author: ABOUT THE AUTHOR Dayle Smith was born in Hobart, Tasmania, Australia. He completed undergraduate degrees in Bachelor of Arts, Bachelor of Laws and postgraduate degrees in Master of Laws and Doctor of Philosophy at the University of Queensland, Australia. His thesis for the Master of Laws degree has as its centre- piece the Pact of Paris of 1926 and its effects in international law as at 1 September 1939 and was submitted in December 1985. He studied this subject in Queensland at the University of Queensland Library where Sir William Webb's vast personal collection of papers were then lodged, at the Australian War Museum in Canberra, in Japan at the library of the Japan Times, at the Tokyo Diet Library, the Supreme Court vault in Tokyo that houses many of the defence documents that were rejected, and at the Imperial War Museum in London. He presented a 15,000 word paper on the Tokyo War Crimes Trial to the Law faculty of the University of New England in Armidale, NSW, and made a similar presentation in the Supreme Court in Brisbane, Queensland where he spoke to the topic 'Sir William Webb' dealing with one half of Chapter 5 that he had written for the publication 'Queensland Judges on the High Court', published by the Supreme Court Library of Queensland in 2003 ISBN 0 975 12300 9. Smith is a keen reader of history and studied history as part of a Master's degree program with the University of New England. He currently practises as a Barrister at law in Brisbane, Australia.