The prevailing view is that the Japanese military ordered the execution of prisoners of war. We will discuss the regulations of international law that apply to prisoners of war later on in this book. But first we shall describe Japanese military rules governing the handling of prisoners of war, and popular perceptions of those rules.The Meaning of "Disposition of Prisoners" A pedagogical example entitled "The Disposition of Prisoners of War" found in A Study of Combat Methods Used Against Chinese Troops, published by the Infantry School in 1933 (four years prior to the invasion of Nanking), reads as follows.
In keeping with our policy toward prisoners of war of all nationalities, it is not absolutely necessary to remand or incarcerate Chinese prisoners of war while waiting to see how the war situation develops. With the exception of special cases, prisoners of war may be released where they were captured, or after having been moved to another location.
Chinese census laws are not uniformly enforced, and there are many vagrants in the Chinese military, whose identity is difficult to ascertain. Therefore, if they were killed or released at another location, there would be no repercussions.1 [Italics supplied.]
There are two parts to this pedagogical example. The first part states that, except in special cases, "prisoners of war may be released" for reasons stated in the second part.
According to the rule governing the "disposition of prisoners of war," as applied to Chinese prisoners, their captors were not required to wait until a battle ended but, except in special cases, could release the prisoners where they were captured or after having transported them to another location. "Special cases" were probably those in which prisoners did not obey orders issued by the Japanese military. In such cases, execution was permissible. In all other cases, prisoners were to be released. Therefore, the "Disposition of Prisoners of War" recommends, and explicitly so, that prisoners of war be released.
However, in his Proof of the Nanking Massacre, Hora Tomio bases his argument that killing all prisoners of war was an established policy of the CCAA on the same Infantry School pedagogical example.2
Fujiwara Akira, author of The Nanking Massacre: The New Version, also espouses the view that the Japanese had "no objection to killing Chinese soldiers, though they were reluctant to execute Russian and German soldiers." He claims that it was Japanese military policy "to disregard international law" where China was concerned.3
However, these views are inconsistent with the wording and spirit of the pedagogical example, i.e., that "prisoners of war may be released." Hora was probably aware of the inconsistency, which is why he cites only the second part of the example. There were, of course, exceptions, but one must be careful not to confuse principles and exceptions.
Then, what was the reason behind releasing prisoners of war? As stated in the example, Chinese census laws were not uniformly enforced, and many Chinese soldiers were, in fact, vagrants. Therefore, there would be no serious consequences if they were released on the battlefield. Furthermore, in special cases, if a prisoner defied orders from a Japanese soldier, for instance, the execution of that prisoner would not be in violation of international law. Article 8 of the Rules Annexed to the Hague Convention Respecting the Laws and Customs of War on Land reads: "Any act of insubordination justifies the adoption towards [prisoners of war] of such measures of severity as may be considered necessary."4Notice Issued by the Vice-Minister of War Another document that addresses the treatment of prisoners of war is a notice issued by the Vice-Minister of War (Lieutenant-General Umezu Yoshijiro), entitled "Application of Battle Regulations" (Top Secret China Army Notice No. 198). The notice was sent by air to the chief of staff of the Army of Occupation in China. It was dated August 5, 1937, four months prior to the invasion of Nanking.
The instructions begin: "Problems concerning battle regulations in the current conflict are to be addressed in a separate document." That document reads as follows.
1. At this time, the Empire is not engaged in a full-scale war against China. Therefore, it is not appropriate to act in accordance with specific items in the "Convention Respecting the Laws and Customs of War on Land and other treaties governing battle regulations," in their entirety.5 [Italics supplied.]
Japan had not issued a declaration of war to Chiang Kai-shek's government. For that reason, it was inappropriate for the Japanese military to act in accordance with specific items in the Convention, in their entirety. A superficial reading of this notice might suggest that the Vice-Minister of War was instructing the Occupation Army to disregard the Convention, and that is the conclusion reached by both Hora and Fujiwara.
However, that portion of the text was no more than a partial disclaimer. The Japanese military certainly intended to adhere to international law during the Second Sino-Japanese War. That was a foregone conclusion. The purport of the text cited above was that specific items in the Convention should not be applied in their entirety.
The next problem to be addressed is what "specific items" were not to be applied. The notice continues.
4. ... At present, it is Imperial policy to avoid being drawn into a full-scale war in China. Therefore, a concerted effort must be made to avoid words and actions (e.g., looting, the use of the term "prisoners of war," or official announcements by military personnel to the effect that battle regulations will be applied, and other unnecessary actions likely to antagonize foreign nations) give the impression that we have resolved to initiate a full-scale war in China.6 [Italics supplied.]
It being Japanese national policy to avoid full-scale war in China at all costs, the Vice-Minister of War instructed Japanese military personnel to avoid creating the impression that Japan intended to wage such a war. Therefore, they were to refrain from making any public mention of the application of battle regulations, or of prisoners of war.
Accordingly, it is doubtful that Hora's interpretation, i.e., that "it was reasonable for Japanese military personnel in China to perceive the notice as instructing them not to recognize the existence of prisoners, and as giving them permission, or even license, to kill them," is valid. Anyone arriving at such an interpretation and acting upon it by killing prisoners would have been committing a grave violation of international law. Moreover, the execution of prisoners would certainly "antagonize foreign nations," and contravene the Vice-Minister's instructions. All those involved would have been court-martialed. There is no basis for the conclusion reached by Hora and Fujiwara, i.e., that the Japanese military sanctioned the execution of prisoners of war.
It should be obvious by now that the notice from the Vice-Minister of War (Top Secret China Army Notice No. 198) was instructing Japanese military personnel to respect international law. The following portion, Section 4, which appears at the beginning of the notice, and which neither Hora nor Fujiwara cites, provides further substantiation.
4. Military personnel are to act in accordance with the aforementioned instructions with respect to the matter at hand. However, since it is the abiding desire of the Empire to minimize, to the extent possible, the ravages accompanying war, military personnel shall make every effort to comply with its objectives by adhering to the portion of the aforementioned "Convention Respecting the Laws and Customs of War on Land" entitled "Means of Injuring the Enemy, Sieges and Bombardments," and to other treaties governing battle regulations.7 [Italics supplied.]
"Means of Injuring the Enemy, Sieges and Bombardments" appears in Article 23, Chapter 2, Section II of Rules Respecting Laws and Customs of War on Land. Article 23 begins, "In addition to the prohibitions provided by special Conventions, it is especially forbidden ... (c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion."8
To lessen the casualties of war, the Vice-Minister of War issued instructions to the effect that every effort be made to adhere to this regulation, i.e., to refrain from killing enemy soldiers who had surrendered. Therefore, interpreting the Vice-Minister's instructions as permission to execute prisoners of war is totally inconsistent with the spirit of his notice.Notice Issued by 13th Division Headquarters Another notice, entitled "Instructions Concerning Warfare," addresses the treatment of prisoners of war. It was issued on October 19, 1937 (two months before the assault on Nanking) by the 13th Division Headquarters, Shanghai Expeditionary Force. Section 11 of that notice, entitled "Treatment of Prisoners of War," reads as follows:
When a great many prisoners of war are captured, they are not to be shot to death, but disarmed, assembled in one location, guarded, and their presence reported to division headquarters. Furthermore, if there are officers among them, said officers are to be disarmed and transported to division headquarters. They are to be used for information-gathering and propaganda purposes. These instructions are to be strictly observed by all subordinate units. However, small numbers of prisoners of war are to be disposed of appropriately after interrogation.9
"Treatment of Prisoners of War" instructed Japanese military personnel not to shoot prisoners to death, when a great many of them were captured, but to submit a report of their capture to Division Headquarters. When a small number of prisoners were taken, they were to be "disposed of appropriately." It would seem that the two phrases in this instruction contradict each other - that one is instructing that prisoners not be shot, but their presence reported, and the other, that they be executed.
Hata Ikuhiko, the author of The Nanking Incident, hypothesizes that "policy condoned the on-the-spot execution of small numbers of lower-ranking soldiers."10 In other words, he assumes that the two phrases were in opposition, and that "disposed of appropriately" meant "executed."
However, such actions contradict instructions from the Vice-Minister of War, in which he specified that Japanese military personnel shall make every effort to adhere to the regulations of international law, which prohibit the killing or wounding of "an enemy who ... has surrendered at discretion." Furthermore, it is impossible to believe that in October 1937, the 13th Division Headquarters of the Shanghai Expeditionary Force issued orders contradictory to the notice from the Vice-Minister of War (Top Secret China Army Order No. 198) issued in August of the same year. Any other interpretation would have been inconsistent with that order. "Appropriate disposition" did not mean "execution."
That being the case, what had Japanese military personnel been instructed to do? Were they to continue to observe small numbers of prisoners for an unspecified period of time? If so, they would have not been arriving at a disposition, but maintaining the status quo and, by doing so, placing themselves in danger.
Since the course of action to be taken was neither execution nor observation, the only remaining possibility is release. Therefore, the notice issued by 13th Division Headquarters entitled "Instructions Relating to Battle" was directing Japanese military personnel not to disarm and kill enemy soldiers who had surrendered, but to release them.
Such action was in keeping with the Vice-Minister of War's notice instructing that the regulations of international law be observed. It is also consistent with the principle outlined in the pedagogical example from the Infantry School, namely, "prisoners of war ... may be released." Therefore, "Treatment of Prisoners of War" was based on previous notices, which stated that, in principle, "prisoners of war are to be released where they were captured."
Then, why not write "release" instead of "appropriate disposition?" The reason is perfectly clear. By writing "release," the authorities would have been ordering Japanese military personnel to free even the most malevolent prisoners. By using the term "appropriate disposition," they were allowing for the execution of prisoners who did not obey orders.
When we paraphrase this regulation, we have, "When there are a small number of prisoners, release them after obtaining the necessary information through interrogation, e.g., their unit, the number of soldiers in that unit, and their operation plan. When there are a large number of prisoners, do not shoot them, but disarm them, report their capture to Division Headquarters, and then release them." In other words, prisoners of war were to be released, regardless of their numbers.
This was a sound policy. It mattered little where a small number of prisoners went once they were released. But it was necessary for Division Headquarters to be aware of the existence of a large number of enemy soldiers, even if they had been disarmed. That is why there were two separate instructions relating to the treatment of prisoners of war, in accordance with their numbers.