Restraining Reconciliation for Retribution in the Treaty of Peace with Japan: An Empirical Research of Jus Post Bellum

This article addresses the question regarding post bellum norms of how to balance the antagonism between retribution and reconciliation. Therefore, the author conducts empirical and inductive research, considering the Treaty of Peace with Japan, specifically analyzing the process of drafting provisions for war criminals of this treaty. These analyses indicate that the methodology, which secures retribution through restrained reconciliation, is embodied in Article 11 of the Treaty of Peace with Japan. The findings of this study suggest that restraining reconciliation for retribution as well as relaxing retribution for reconciliation is acceptable for implementing post bellum norms.


Introduction
The question of how to balance the antagonism between retribution and reconciliation, or between punishment and amnesty, can be posed with respect to post bellum norms, 1 which have evolved into a novel discipline in international legal studies. Stahn analyzes the context of contemporary international practice, which grants amnesty for less serious crimes, with "a combined justice and reconciliation model" positioned as one of the principles of post-conflict law. 2 However, he has not explained the specific contents of this combined model. Identifying retribution, reconciliation, 3   thoroughly executed the sentences of convicted war criminals. 26 In this vein, the United States divested Japan of the power to grant amnesty 27 and precluded reconciliation, which was the end of amnesty; 28 therefore, it solely attempted to secure retribution.

Introduction of Reconciliation and Alleviation of Retribution
After closure of examination by the International Military Tribunal for the Far East, despite the abovementioned efforts in pursuit of retribution, the construction of established facts ("de facto peace"), including requests for early completion of war crimes trials and screening of war crimes suspects who can be discharged, proceeded under the guidance of George F. Kennan, Director of the Policy Planning Staff of the United States Department of State. Kennan's March 25, 1948 report advocated (1) that the trials of category "A" suspects should be terminated early; (2) that all category "B" and "C" suspects should be screened with a view to releasing those whose cases were not intended to be prosecuted by the Allied Powers; and (3) that the other "B" and "C" suspects supposed to be indicted should face expeditious trials. 29 Documents based upon this report and adopted by the United States National Security Council (NSC) indicated their contemplation of gathering established facts 30 ("de facto peace") 31 in an effort to assist the United States' policy that it "should try to clear away during this intervening period as many as possible of the matters which might otherwise be expected to enter into the treaty of peace," 32 by duplicating Kennan's proposal to (1) determine the trial of "A" suspects; (2) institute and draft stipulated Japan's right to exercise the authority to grant amnesty after approval from the Allied Powers. 43 Thus, with survival of the pursuit and security of retribution, the October 13 draft introduced reconciliation by vesting Japan with the power to grant amnesty. The November 2 draft permuted the order of the articles, but nonetheless, provided the continued obligation to apprehend and turn over even after specifying the approval by the Allied Powers to concede power to Japan to grant amnesty, 44 highlighting the considerations of reconciliation. Although the introduction of reconciliation was being promoted in this vein, the modification in the pursuit and security of retribution remained unrealized. 45 Yet, the December 29 draft omitted the clause obligating Japan to arrest and turn over suspects and only stipulated the partial execution of sentences 46 and amnesty power be granted to Japan, with the consent of the Allied Powers. 47 Thus, while the United States introduced reconciliation, it renounced pursuit of retribution and agreed on the moderate security of retribution.

The United States' Methodology
For the purpose of securing retribution and the potential fruition of reconciliation, the United States devised a methodology to restrain reconciliation so that retribution might be secured to the extent of restriction on reconciliation. The August 17, 1950 draft treaty, enunciating Japan's deference to the sentences, 48 prescribed that the power to grant amnesty might be wielded by Japan only insofar as the Allied and Associated Powers conceded. 49 At this point, by conditioning the right to exercise the authority of granting amnesty, the trend toward restraining reconciliation could be observed. Moreover, despite omitting the clause with respect to rulings, the September 11 draft provided for Japan's right to exercise its power of granting amnesty in collaboration with the Allied Powers. 50 Accordingly, the United States restricted the manner in which Japan could employ its power to grant amnesty by virtue of requiring joint application, although it accepted the power to grant amnesty itself; hence, it created the methodology to restrain reconciliation and secure retribution to the extent of restriction on reconciliation. 43 Article 20 provided that, "The power to grant clemency, reduce sentences, parole and pardon may be exercised by Japan with the approval of the Government or Governments which imposed the sentence in each instance. In the case of the persons sentenced by the International Military Tribunal for the Far East, such power may be exercised by Japan with the approval of a majority of the Governments represented on the Tribunal." Ibid. 44 Treaty of Peace with Japan.

Amnesty for Convicted War Criminals
The United States instructed Japan on securing retribution for convicted war criminals only at an abstract level without providing any drafts of the peace treaty; hence, the United States' concrete methodology did not succeed in the agenda between the United States and Japan. According to the report drafted by the Ministry of Foreign Affairs of Japan and digested conversations between relevant officers of the United States Department of State's Office of Northeast Asian Affairs and those who were in the Ministry of Foreign Affairs of Japan from late September to mid-October 1950, 52 Robert A. Fearey, a member of the Office of Northeast Asian Affairs, explained that with regard to the political clauses in the drafts, the United States was determined to secure the execution of punishment of convicted war criminals even after the ratification of the Treaty of Peace with Japan, 53 and on January 26, 1951, although Japan received the agenda that included the item regarding war criminals, the sole focus was on jurisdiction over the convicted. 54 Thereupon, Japan requested that the United States give the Japanese government the power to grant amnesty to war crimes suspects and convicted war criminals. On January 30, Shigeru Yoshida, Prime Minister of Japan, handed his "Suggested Agenda" (his personal remarks) 55  on discrete amnesty rulings in proportion with crimes committed. 57 The United States delivered the "Provisional Memorandum," prepared by the Dulles Mission on February 3, to Japan on February 5. 58 This memorandum endorsed amending the power to grant amnesty for convicts to be a joint exercise to include Japan and the governments of the Allied Powers; 59 thus, the United States revealed its methodology to restrain reconciliation by means of conditioning the manner of granting amnesty and to secure retribution to the extent of restriction on reconciliation.

Amnesty for War Crimes Suspects
In contrast, the February 3, 1951 provisional memorandum made no mention of amnesty for war crimes suspects, resulting in Japan's call to include the explicit provision for this amnesty. On February 6, at the administration-level talks with the United States, the Japanese government expressed its opinion on the provisional memorandum, stating that, "It is desired a clause be inserted, putting an end to prosecution of new cases," 60 in the peace treaty. 61 This paragraph should be considered to restrain reconciliation slightly stronger than that of the September 11, 1950, draft, in that, compared to the latter, which adopted the diction, "The power … may be exercised jointly," the former altered it to "The power … would be exercised jointly;" therefore, the joint right to exercise the power to grant amnesty was determined. Along the same lines, given that Dulles admitted in an interview to the Associated Press on February 5, 1951, that Japan had no power to alter the verdicts of war trials and suggested his intent to restrain not the manner of granting amnesty but the power to grant amnesty itself, the direction toward the intensification of the restriction on reconciliation and the enlargement of securing retribution could be found. Treaty of Peace with Japan was the restriction on reconciliation and security of retribution for convicted war criminals. Since the present paper is conducting a case study on balancing the conflict between retribution and reconciliation, the focus here should be on retribution for convicted war criminals and not for war crimes suspects who were granted de facto amnesty.
As a result of the consultation with Japan, the United States obtained Japan's consent to the provisional memorandum unveiling its mechanism for securing retribution for the convicted, and on February 9, both states initialed the five documents, which included the February 8 provisional memorandum, 64 representing the momentary achievement of an understanding. 65

Dispute over Methodology for Retribution
Prior to communicating with Japan, the United States had informed the United Kingdom about adopting the mechanism of confining the exercising fashion of Japan's power to grant amnesty as the methodology for balance. which could, on its face, be construed as giving Japan the power to grant amnesty, but clarifying its design to condition the manner and use of the power to grant amnesty and secure retribution. The second reaction by the United States was to redraft the Treaty of Peace with Japan, with the result that it adopted the clause, which unequivocally grants the power to grant amnesty as an exception to the principle of securing retribution. Initially, in the March 13, 1951 aide-mémoire addressed to the United Kingdom, the United States remarked that it believed that the Japanese government should not be able to grant amnesty to convicted war criminals, unless by agreement of the Allied Powers, 69 declaring the substance of the methodology enunciated in the Eight-point Memorandum restrictive in invoking amnesty. Second, the provisional draft presented by the United States to the United Kingdom on March 23 70 adopted a negative tone, which provided that Japan would be unable to use the power to grant amnesty, except in collaboration with the Allied Powers. 71 Therefore, not only did the United States' methodology for securing retribution become more definite on its face but it also strengthened the restraint on reconciliation by virtue of thrusting the user of amnesty into the exception and positioning the security of retribution as the principle over that which had been hitherto adopted. 72 The United Kingdom, without considering its relationship with the United States, 73 delivered its provisional draft of the Treaty of Peace with Japan to the United States. Despite arranging an evident compromise with the methodology advocated by the United States, 74 this provisional memorandum imposed comparatively rigorous restrictions against the exercise and components of the power to grant amnesty by Japan and leaned toward securing retribution more than the methodology of the United States. Specifically, the April 7, 1951 British provisional draft, handed to the United States on April 9, had been ready since February 75 and ascertained the security of retribution by its first sentence under Article 21, which stipulated the acknowledgment of the judgments and performance of the convictions. 76 Further, the second sentence of Article 21 not only placed a harsh restriction on the use of power to grant amnesty by positioning the joint right to exercise this power as one of Japan's legalities, but also assigned a limit to the constituents of this power by omitting the word "pardon" from a listing of the modes of release. 77

Japan's Reaction toward the United Kingdom's Methodology
The United States, which had received the draft from the United Kingdom, unofficially notified Japan of the draft; the United States disclosed Japan's views of the United Kingdom's methodology to modulate its own methodology for retribution. In response to the unofficial announcement, Japan communicated to the United States that it had no objection to the draft of the United Kingdom, as the British methodology's significance was identical to that of the United States. By its confidential receipt of the United Kingdom's draft through the United States on April 17, 1951, Japan noted its remarks on Article 21, specifically that the methodology of the United Kingdom, which was more rigid than that of the United States in the sense that the former comprised the execution of sentences, the obligation to jointly exercise the power to grant amnesty, and the omission of "pardon," had the same meaning as the methodology of the United States in the March 23 American draft. 78 During the April 21 talks with the United States regarding the British draft, Japan consented to the provision on war criminals because the implication of this clause was identified as that in the draft of the United States. 79

Concession by the United States
In view of Japan's undisputed attitude toward the severe methodology of the United Kingdom, the United States, in the process of drafting the peace treaty jointly with the United Kingdom, reached a compromise with the United Kingdom by reinforcing the modification of reconciliation more than the March 23, 1951 draft; 80 however, the United Kingdom hinted that it was dissatisfied with the extent of this intensification. The May 3, 1951 jointly-drafted peace treaty did not stipulate Japan's acceptance and administration of sentences, solely because of the draft by the United States, 81 but it changed the mode of restraint from the one that set a limit to the manner of using the power to grant amnesty to the one that limited the contents of and power to grant amnesty itself via, (1) conditioning "pardon" into a permissible grant only when new evidence is discovered, and   82 Article 12 provided that, "The power to grant clemency, reduce sentences, parole and pardon (the last only when newly discovered evidence so warrants) with respect to the war crimes sentences imposed … may not be exercised except on the decision of the Government or Governments which imposed the sentence in each instance, and on the recommendation of Japan…" See, Draft Japanese Peace Treaty. In Kingdom enunciated the suspension of this article, on account of the first sentence of Article 21 of the British draft of April 7, and the adoption of the term "pardon." 83 Thereupon, the United States, determined to make an additional concession to the United Kingdom, 84 prepared a revised joint draft that intensified the restriction on reconciliation even further than the May 3 joint draft. First, the June 14 revised joint draft, which was prepared because of the talks in London between Dulles and Morrison, 85 provided, in the first sentence of Article 11, a novel stipulation specifying Japan's acceptance of the judgments and execution of sentences in accordance with the April 7 British draft, 86 strongly expressing the intent of securing retribution. Second, the second sentence of the revised jointly drafted Article 11 omitted "pardon" from the May 3 joint draft, 87 strengthening the restraint on the components of the power to grant amnesty.
The United States presented Japan with the rigorous methodology for retribution settled with the United Kingdom. However, Japan had no objection against this methodology. On June 28, Japan received Article 11 of the June 14 revised joint draft from Allison, Deputy to Dulles of the United States. 88 After considering Article 11, Japan privately commented that the amendments would not be opposed, recognizing the modified sentences providing for its acceptance of convictions and restricting its capacity to grant amnesty by providing it with only the right to recommend. 89

Determination of Article 11 of the Treaty of Peace with Japan
The United States and the United Kingdom reached an agreement on the extent of restriction on reconciliation, which was provided in the June 14, 1951 revised joint draft. Hence, Article 11 of the Treaty of Peace with Japan, setting the methodology for retribution by restraining reconciliation, was complete. The July 3 draft of the Japanese peace treaty, 90 which included the same provision as Article 11 of the June 14 draft, was sent to Japan on July 7 91 and jointly published by the United States and the United Kingdom on July 12. 92 Next, the July 20 draft, 93 including one clause from Article 11 of the July 3 draft, was delivered to the states that were to be invited to the peace conference in San Francisco. The final draft of the Treaty of Peace with Japan, 94 which provided roughly the same article as Article 11 from the July 20 draft, 95 was handed to Japan on August 15 and publicized on August 16. 96 Finally, the Treaty of Peace with Japan, Article 11 97 of which was identified as that of the final draft, was adopted on September 8.

Conclusion
Based on the previous diachronic analyses of diplomatic negotiations while drafting the provisions relating to war criminals under the Treaty of Peace with Japan, the author concludes the following: Article 11 of the Treaty of Peace with Japan can be construed on its face as tweaking retribution for reconciliation, for according to this provision, Japan will execute sentences of war crimes trials, but at the same time, may make recommendations to the Allied Powers in exercising their power to grant amnesty. In reality, however, this provision crystallizes the methodology of strongly restraining reconciliation to secure retribution as the principle to the extent of restriction on reconciliation.
The foregoing considerations concluded from the earlier chapters can be corroborated by a range of theoretical rationales, which include the following: (1) Japan's study of and response to the July 12, 1951 draft peace treaty, which had essentially the same provision as Article 11 of the Treaty of Peace with Japan, suggested that the article regarding war criminals could be interpreted as an exception to the theory that all convictions became hereafter invalid unless the contrary was explicitly stipulated; in other words, all convicted war criminals were granted amnesty in peace treaties. 98 Accordingly, reading the context of the restraint to amnesty (reconciliation) into Japan's study should be possible; (2) At the peace conference in San Francisco, the delegates of Mexico and 90 Treaty of Peace with Japan. El Salvador asserted that the restriction of Japan's power to grant amnesty should be loosened, 99 implying that they deemed the legal effect of Article 11 of the final draft as restraining amnesty (reconciliation); (3) All convicted war criminals relating to the Republic of China were discharged as a result of the exclusion of the application of Article 11 of the Treaty of Peace with Japan by Paragraph 1(c) of the Protocol of the Treaty of Peace between Japan and the Republic of China. From this fact, it is reasonable to suppose that Article 11 of the Treaty of Peace with Japan possessed the legal effect of restraining amnesty (reconciliation), so that amnesty in peace treaties was invoked since the restriction of the power to grant amnesty was discarded in the Treaty of Peace between Japan and the Republic of China; 100 (4) Recognizing the legal effect of Article 11 of the Treaty of Peace with Japan as limiting reconciliation is consistent with the course of tempering "soft peace," which is adopted as the liberal concept connoting lenient legal effects in the Treaty of Peace with Japan, with sternness during the process of drafting this treaty as a whole. 101 The present article attempts to answer the question of how to balance the antagonism between retribution and reconciliation, or between punishment and amnesty, which can be raised with regard to post bellum norms. An answer to this question, based on the case study of the Treaty of Peace with Japan, provides the possibility of adopting the methodology of restraining reconciliation to secure retribution to the extent of restriction on reconciliation. This answer results in the conclusion that restraining reconciliation for retribution as well as relaxing retribution for reconciliation is acceptable for implementing post bellum norms.