Abstract
The popular view that the result of the voting for imposing death penalty at the Tokyo Trial was six to five needs to be qualified. First, only ten judges took part in the vote, as the judge of France Henri Bernard abstained. Second, voting results for the seven culprits who were sentenced to death varied, with some six to four and the others seven to three. For example, Hirota Koki should have received a voting result of six to four, while Tojo Hideki was sentenced to death by a vote of seven to three. Although the judges at the International Military Tribunal for the Far East, Tokyo differed in their opinions on certain specific issues, they all adhered to the principle of judicial independence faithfully, which warranted the legitimacy of their judgment on the basis of international rule of law.


“With what then will you recompense kindness? Recompense injury with justice, and recompense kindness with kindness. ”

——Confucius

I. Preface

After the Second World War ended the International Military Tribunal for the Far East (hereinafter “the Tribunal”) was established in Tokyo by the Allied Supreme Command. In accordance with the Cairo Declaration on 1st December 1943, the Potsdam Proclamation on 26th July 1945, Japan’s Instrument of Surrender on 2nd September 1945 and Resolution of Moscow Conference of Foreign Ministers on 26th December 1945. According to the Charter of The International Military Tribunal for the Far East, the purpose of the Tribunal was for “the just and prompt trial and punishment of the major war criminals in the Far East” (Art.1). The Tribunal consisted of judges from 11 countries including the United States, China, the United Kingdom, Soviet Union, Australia, Canada, France, Netherlands, New Zealand, India and Philippines, and held trials for 28 major war criminals who were prosecuted by the International Procuratorial Department in the first batch. The court sessions opened on 3rd May 1946 and closed on 12th November 1948. It lasted for over two years and a half, during which the hearings were held for 423 days and the court called for 831 times, wherein 49,858 pages English trial memos and 1445 pages English judgments as showed in memos were produced, 423 witnesses were called, and 3915 items of evidences were admitted. Its scale was thus far larger than the more renown post-war international trial, namely the Nuremberg Trial. This trial of the century was held in Tokyo, so it was generally referred to as the Tokyo Trial.

Time flies. Looking back, many questions related to historical facts still remain unclarified.

In the film The Tokyo Trial, directed by Gao Qunshu in 2006, the climax brings back the scene of conviction and the sentencing in the judges’ meeting back then: Chinese judge Mei Ju-ao, after referring to the unanimous consent on defendant’s culpability, forcefully argued for the legitimacy of imposing death penalty. He debated with the Judge of France Henri Bernard, the Judge of India R. M. Pal and President of the Tribunal Sir William Webb, and the debate was followed by an anonymous voting by all judges. In a breath-taking atmosphere, the eleven judges finally decided in favour of imposing death penalty by the voting result of six to five.

The film contains, however, two defects. First, with regard to the conviction: Not all judges in the scene agreed to the defendants’ culpability, which can be evidenced by the Judge Pal’s consistent stance that all defendants were innocent. Second, in terms of the actual sentencing. The film simplifies and blurs the procedural requirements of the complicated voting process for death penalty by the use of theatrical devices. Upon further research, many questions would quickly arise: Whether the voting result of six to five was generally applied to all the convicted war criminals, or merely to some of them? If it was the latter, how was the voting result for the other condemned criminals? What was the debate like which led to the voting result? And so forth. This article does not intend to criticize the director of the film. In fact, a voting result of six to five has been generally endorsed by Chinese academia, and other academics seemed to have never discussed the issues in details either due to the particularity of the questions or a difference in research interests. In this article, I question the popular view on six-to-five-votes, aiming to bring back to life the true situation of death penalty sentencing, while further sharing some personal insights and comments based on the historical evidence and in-depth analysis of them.