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The Japanese Note Delivered in Washington on 7th December 1941
Hague Convention No. III of 1907, relative to the opening of hostilities, provides by its first Article "The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war". That Convention was binding on Japan at all relevant times. Under the Charter of the Tribunal, the planning, preparation, initiation, or waging of a war in violation of international law, treaties, agreements or assurances is declared to be a crime. Many of the charges in the indictment are based wholly or partly upon the view that the attacks against Britain and the United States were delivered without previous and explicit warning in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war. For reasons which are discussed elsewhere, we have decided that it is unnecessary to deal with these charges. In the case of counts of the indictment which charge conspiracy to wage aggressive wars and wars in violation of international law, treaties, agreements or assurances we have come to the conclusion that the charge of conspiracy to wage aggressive wars has been made out, that these acts are already criminal in the highest degree, and that it is unnecessary to consider whether the charge has also been established in respect of the list of treaties, agreements and assurances -- including Hague Convention III -- which the indictment alleges to have been broken. We have come to a similar conclusion in respect to the counts which allege the waging of wars of aggression and wars in violation of international law, treaties, agreements and assurances.
We have come to a similar conclusion in respect to the counts which allege the waging of wars of aggression and wars in violation of international law, treaties, agreements and assurances. With regard to the counts of the indictment which charge murder in respect that wars were waged in violation of Hague COnvention No. III of 1907 or of other treaties, we have decided that the wars in the course of which these killings occurred were all wars of aggression. The waging of such wars is the major crime, since it involves untold killings, suffering and misery. No good purpose would be served by convicting any defendant of that major crime and also of "murder" eo nomie.
대미각서(14part letter)에 대해 논하고 있습니다. 번역을 건너뛰는 부분이 많은 점에 유의해주시기 바랍니다.
1907 전쟁개시에 관한 법에서는 시간적 요건/내용적 요건을 준수할 것을 요합니다. 일본 역시 그 체약국으로 그를 준수한 의무를 집니다. 전범재판소 헌장에 따르면 ‘국제법, 조약, 협약 등에 반해 전쟁을 계획, 준비, 개시 또는 침략전쟁’을 하는 것은 전쟁범죄입니다. 공소장에 기재된 기소들의 많은 부분은 ‘영국과 미국에 대한 공격은 시간적/내용적 요건을 갖추지 않고 벌어졌다’는 관점에 대부분, 혹은 부분적으로 기반하고 있습니다. 다른 곳에서 벌어진 논쟁상의 이유로 우리 재판부는 그런 기소들은 다룰 필요가 없다고 판단했습니다. 침략전쟁에 대한 기소가 명백히 유죄이기 때문에 조약, 협약 등(1907 전쟁개시에 관한 법을 포함)에 기초한 기소에 대해 고려할 필요가 없습니다.
Accordingly, it is unnecessary for us to express a concluded opinion upon the exact extent of the obligation imposed by Hague Convention III of 1907. It undoubtedly imposes the obligation of giving previous and explicit warning before hostilities are commenced, but it does not define the period which must be allowed between the giving of this warning and the commencement of hostilities. The position was before the framers of the Convention and has been the subject of controversy among international lawyers ever since the Convention was made. This matter of the duration of the period between warning and hostilities is of course vital. If that period is not sufficient to allow of the transmission of the warning to armed forces in outlying territories and to permit them to put themselves in a state of defence, they may be shot down without a chance to defend themselves. It was the existence of this controversy as to the exact extent of the obligation imposed by the Convention which opened the way for TOGO to advise the Liaison Conference of 30th November 1941 that various opinions were held as to the period of warning which was obligatory, that some thought it should be an hour and a half, some an hour, some half an hour. The Conference left it to TOGO and the two chiefs of Staff to fix the time of the delivery of the Note to Washington with the injunction that that time must not interfere with the success of the surprise attack. In short, they decided to give notice that negotiations were broken off at so short an interval before they commenced hostilities as to ensure that the armed forces of Britain and the United States at the points of attack could not be warned that negotiations were broken off. TOGO and the naval and military men, to whom the task had been delivered, arranged that the Note should be delivered in Washington at 1:00 p.m. on 7th December 1941. The first attack on Pearl Harbor was delivered at 1:20 p.m. Had all gone well, they would have allowed twenty minutes for Washington to warn the armed forces at Pearl Harbor. But so anxious were they to ensure that the attack would be a surprise, that they allowed no margin for contingencies. Thus, through the decoding and transcription of the Note in the Japanese Embassy taking longer than had been estimated, the Japanese Ambassadors did not in fact arrive with the Note at Secretary Hull's office in Washington until 45 minutes after the attack had been delivered. As for the attack on Britain at Kota Bharu, it was never related to the time (1:00 p.m.) fixed for the delivery of the Note at Washington. This fact has not been adequately explained in the evidence. The attack was delivered at 11:40 a.m. Washington time, one hour and twenty minutes before the Note should have been delivered if the Japanese Embassy at Washington had been able to carry out the instructions it had received from Tokyo.
We have thought it right to pronounce the above findings in fact, for these matters have been the subject of much evidence and argument, but mainly in order to draw pointed attention to the defects of the Convention as framed. It permits of a narrow construction and tempts the unprincipled to try to comply with the obligation thus narrowly construed, while at the same time ensuring that their attacks shall come as a surprise. With the margin thus reduced for the purpose of surprise, no allowance can be made for error, mishap or negligence leading to delay in the delivery of the warning, and the possibility is high that the prior warning which the Convention makes obligatory will not in fact be given. TOJO stated that the Japanese Cabinet had this in view, for they envisaged that the more the margin was reduced, the greater the possibility of mishap.
따라서 우리 재판부는 1907 전쟁개시에 관한 법이 준수할 것을 요하는 의무의 정확한 범위에 대해 설시할 필요가 없습니다. 1907 전쟁개시에 관한 법이 전쟁개시 전에 선전포고를 할 것을 요하는 것에는 의심의 여지가 없지만, 전쟁개시와 선전포고 사이의 시간적 간격에 대해서는 명확하게 정의하고 있지 않습니다. 그에 대해서는 협약이 만들어진 이래로 계속 의견의 다툼이 있었습니다. 시간적 간격의 문제는 물론 중요합니다. 시간적 간격이 부족하다면, 방어자는 방어의 기회를 얻지 못할 것입니다. 도고는 회의에서 그걸 논했고, 90분, 60분, 30분 등의 의견이 나왔습니다. 회의가 끝나고 기습의 성공을 위해 전달시간을 수정하는 논의가 이어졌습니다. 그에 따라 워싱턴 시각 오후 1시에 도달되도록 정했습니다. 그 시간은 진주만 공습 20분 전입니다. 하지만 기습의 성공에 집착하여 우발사고에 대처할 수 있는 여유시간을 허락하지 않았습니다. 그래서 실제로 전달이 지연되었습니다. 암호해석과 번역이 늦어져서 진주만 공습 45분 뒤 도착합니다. 영국령 코타 바루에 대한 공격은 당초 예정된 워싱턴 시각 오후 1시와도 무관했습니다. 그보다 1시간 20분 빠른 11시 40분에 일어났으니까요.
우리 재판부는 상술한 바가 모두 사실이라고 생각합니다만, 1907 전쟁개시에 관한 법 자체의 흠결에 중점을 두고자 합니다. 시간적 간격에 대한 원칙이 존재하지 않았기에, 기습을 성공시키는 한편 이 법의 의무를 준수하는 것은 굉장히 제한되어 있었습니다. 기습을 위해 여유시간을 줄이면서, 통보의 지연으로 이어지게 되는 오류, 사고, 과실은 용납되지 않았고, 법이 요구하는 사전통보의무는 사실상 이뤄지지 못한 가능성이 매우 높아졌습니다. 도조는 일본 내각이 이런 관점에서 여유시간이 줄어듬에 따라 사고의 가능성이 높아진다는 점을 직시했다고 말했습니다.
The Formal Declaration of War
The Japanese Privy Council's Committee of Investigation did not begin the consideration of the question of making a formal declaration of war upon the United States, Great Britain and the Netherlands until 7:30 a.m., 8th December (Tokyo time), when it met in the Imperial Palace for that purpose at that time. SHIMADA announced that the attacks had been made upon Pearl Harbor and Kota Bharu; and a bill declaring war on the United States and Great Britain, which had been drafted at the residence of HOSHINO during the night, was introduced. In answer to a question during the deliberations on the bill, TOJO declared in referring to the peace negotiations at Washington that, "those negotiations were continued only for the sake of strategy". TOJO also declared during the deliberations that war would not be declared on the Netherlands in view of future strategic convenience; and that a declaration fo war against Thailand would not be made, as negotiations were in progress between Japan and Thailand for the conclusion of "an Alliance Pact". The Bill was approved; and it was decided to submit it to the Privy Council. The Privy Council met at 10:50 a.m., 8th December 1941 and passed the Bill. The Imperial Rescript declaring war against the United States and Great Britain was issued between 11:40 and 12:00 a.m., 8th December 1941 (Washington time, 10:40 p.m. and 11:00 p.m., 7th December) (London time, 2:40 a.m. and 3:00 a.m., 8th December). Having been attacked, the United States of America and the United Kingdom of Great Britain and Northern Ireland declared war on Japan on 9th December 1941 (London and Washington, 8th December). On the same day, the Netherlands, Netherlands East Indies, Australia, New Zealand, South Africa, Free France, Canada and China also declared war on Japan. The next day, MUTO stated in a conversation with the Chief of Operations of the Army General Staff that the sending of Ambassador Kurusu to the United States was nothing more than a sort of camouflage of events leading to the opening of hostilities.
선전포고에 대한 이야기입니다. 일본사법수사위원회는 미국, 영국, 네덜란드에 대한 선전포고에 대한 논의를 도쿄 시각 12월 8일 오전 7시 30분(도쿄와 워싱턴의 시차는 13시간입니다. 즉 워싱턴 시각으로는 12월 7일 오후 5시 30분으로 진주만 공습 이후의 시점입니다)까지 시작도 하지 않고 있었습니다. 황궁에서의 모임에서 시마다는 진주만과 코다 바루 공격에 대해 밝혔습니다. 도조는 워싱턴과의 평화협상은 오직 전략을 위해 유지되었던 것이라고 했습니다. 무토는 육군참모총장과의 대화에서 쿠르스 대사를 미국에 보낸 건 개전에 대한 위장에 불과하다고 했습니다.