The Prosecution Rests

The prosecution at Tokyo's International Military Tribunal for the Far East rested its case last week. The defense went through the formality of a motion for dismissal, then buckled down to the task of defending the 26 Japanese in the dock (including. ex-Prime Minister Tojo and ex-Foreign Minister Shigemitsu). The charges: "Crimes against peace, murder, conventional war crimes and crimes against humanity."

The prosecution had taken eight weary months to build up its case, and the defense would probably take no less. The testimony of 103 witnesses, mostly Japanese, had been translated into English, Russian, French, Chinese. The prosecution had amassed so many documents that it looked as though it needed bulldozers rather than filing clerks. Said one officer in the documents division: "At first I listed all incoming documents. Then they came so fast that I listed only incoming bags. Then crates of bags. Now I just list the rooms they're in."

A question remained: Had the prosecution proved anything beyond the victors' power to punish the vanquished? In Washington last week, where he had flown to report to President Truman, U.S. Chief Prosecutor Joseph Berry Keenan answered with a resounding yes. Said he: "We see this trial as establishing the precedent. . . that wagers of aggressive warfare are . . . outlaws."

Critics still claimed that the desirability of outlawing war did not mean that it had in fact been outlawed at the time the accused planned war. Many of the nations on the tribunal had had such doubts. Britain, Australia and New Zealand (related Keenan) had at first wanted to conduct the trial on the narrow grounds that Japan had violated the rules of civilized warfare, while the U.S. and Canada clung to the Nuernberg view that aggressive war was itself a crime. Pragmatic ex-Gangbuster Keenan somewhat naively quoted Webster's New International Dictionary, second edition, unabridged, 1943, in an effort to establish a legal definition of aggressive war.*

Keenan, in fact, never got beyond Justice Jackson's expression of faith at

Nuernberg in the world's unwritten common law: "If there is no law now under which to try these people, it is about time the human race made some" (TIME, Oct. 21). Perhaps the most striking of several legal opinions, diligently gathered by Keenan, was one by U.S. Supreme Court Justice Benjamin Cardozo (1934): "International law . . . has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice till at length the imprimatur of a court attests its jural quality. The gradual consolidation of opinions and habits has been doing its quiet work."

* The definition: a first or unprovoked attack, or act of hostility; the first act of injury or first act leading to a war or a controversy; an assault; also, the practice of attack or encroachment; as, a war of aggression.

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