3. "Killing" of a defeated soldier in or out of uniform and "killing" of a misidentified civilian

I write about [3. the "killing" of a defeated soldier in and out of uniform and the misidentified "killing" of a civilian].
Even today, there is a debate among the Japanese over the merits of this [legal effect] for [the killing].

From [historical documents], the International Safety Committee submitted a statement on December 15 asking for leniency to the Japanese military.
However, the Japanese have been attacked from the direction of the safe zone on December 14, so the Japanese military has the perception that the safe zone is now clearly not a neutral zone but a [combat zone].
When the International Security Commissioner visited the Japanese troops, they promised to search the safe zone and treat [the treatment of Chinese soldiers disarmed by Westerners] humanely.
The Chinese soldiers in the rest of the area were considered to have [intent to fight].
The reason for this is that they have become a "便衣隊(Benitai)" and have committed acts of warfare (escape and hiding).
To Americans, the term "Benitai" is unfamiliar to them.
These are soldiers who disguise themselves as civilians, wearing the same civilian clothes and disguising themselves as civilians, and carry out various hostile acts.
The Chinese soldiers often violated international law and the "principle of trust and confidence" in the battle of Shanghai, which is a principle of international law.
The soldiers of Benitai are to be killed because they do not have [prisoner of war rights].
These stool-clad soldiers were effective in urban warfare.
In the urban areas of Shanghai, it would be indistinguishable from the non-combatants, because for a moment the Japanese troops would not be able to distinguish between them, and would hesitate to fight and limit their military operations.
Combat is a military priority, and in such a case, the real noncombatants would be collateral damage.
Similar situations are the Vietnam War, the fight against the Taliban in Afghanistan, and the fight against terrorist organizations.
Because of the indistinguishability between non-combatants and soldiers, non-combatants due to misidentification are also collateral casualties in combat and subsequent mop-up operations.
Countries that have now ratified and issued the Rome Statute of the International Criminal Courte of 1998, strict conduct is required, and if you kill a non-combatant, the soldier will be tried for "murder".
Legislation that ignores actual behavior may regulate the behavior of the military too much, leading to operational failure.
It is true that before the Rome Statute, there was no clear regulations, but rather the personal judgment of the soldiers at the scene of battle took precedence.
So, military negligence, etc., was to be done with subsequent compensation.

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.
Art. 3. A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
The government pays for people's lives with money, but it was also a necessary treaty to avoid prolonging the conflict later on.
By that logic, the U.S. murdered Hiroshima and Nagasaki [the atomic bombs], the "infants," "toddlers," "old people," "sick people," "Christians" and all the people who were there, whether they were Christians or not.
However, I have never heard of the U.S. "compensating" Japan after the war in accordance with the laws of land warfare.
Perhaps the Japanese side did not claim it, in order to protect the Emperor and for fear of a third atomic bomb.

So, the I see POWs or misunderstood victims in reports by Westerners living in those days.
50 people in the letter of the 14th Smythe.
28 people in the report of the Wollington during the registration of the 26th to 27th.
Chinese soldiers who responded to the announcement on the occasion of the registration of refugees in the letter of the 27th Smythe; more than 200 people. (After the end of the refugee registration again 200-300 people were hunted and killed. Testimony of its survivors. Not true in fact.
The Westerners claim about 400 people, but in fact, judging from the Japanese data, which will be discussed later, the number is about 80 people.
We can see that there is a major problem with their claim.

In the "historical record" on the Japanese side.
They are supposed to have caught and killed about 6,500 people, plucking them out between December 14, 15 and 16.
This treatment is other than the soldiers disarmed at the hands of missionaries in the safe zone, as mentioned earlier.
It was not the troops of Lieutenant General Nakajima (16th Division) who performed this procedure, as claimed by the Chinese.
Selected unit of Colonel Hiroshi Nakagawa's 7th Regiment (Isa Kazuo) of the 9th Division (selection of fluent linguists).
This unit has been camped outside the city after the prodigal sweep of the 14th.
Since the POWs captured by the 15th were all soldiers and no officers, I think it is natural for the Japanese to assume that the Chinese soldiers had changed clothes and were hiding in the refugee areas.
In addition, on the 16th carried out a thorough sweep.
The official report from December 13-24 in the 7th Regiment's battle detail report lists 6,670 men.
The unit has seized 2,400 pieces of Beni clothing [same civilian clothes, ethnic clothes, etc. as the average citizen].

In addition, the number of people killed is seen from the diaries of other Japanese soldiers and others.
December 14: Many killed, including 21 the day before. Number unknown. Diary of Shoichi Mizutani, 1st Company, 7th Regiment
December 14: 600 men from 328 men at the Hsuan Wu Gate. Masuda Rokusuke 2nd Platoon, 4th Company, 20th Regiment, Diary.
December 14: 250 men (including 80 killed). 1st Company, 1st Battalion, 1st Tank Battalion, detailed report of the battle.
December 14: About 2,000 prisoners of war were transferred to the POW camp at Kirin Gate. Kenro Kajitani, cavalry sergeant, 2nd Quay command center, diary
December 16: 335 killed in Hsia Kwan. Ike Mataichi, 2nd Company, 7th Regiment
December 16: 36 killed. Mizutani Shoichi, 1st Company, 7th Regiment
December 16: thousands and 1,000 killed. Mizutani Shoichi, 1st Company, 7th Regiment
December 16: About 2,000 prisoners of war in Kirin Gate. Killed in Hsia Kwan, 7 newly arrested people also killed. Kenro Kajitani, cavalry sergeant, 2nd Quay command center, diary
December 16: Han Chung Men. Hearsay information. 1,000 Chinese soldiers captured outside the castle are killed. Mamoru Orita, 2nd Battalion, 23rd Regiment, Diary
December 17: 1,200 Killed. Mizutani Shoichi, 1st Company, 7th Regiment
December 17: About 2,000 prisoners of war. Killed in Shimonoseki, 10 people escaped. Kenro Kajitani, cavalry sergeant, 2nd Quay command center, diary
December 22: 161 people killed near Ku Ling Temple. Diary of Mataichi Iye, 2nd Company, 7th Regiment
Total, 8468 people.
Simple calculations include duplicates and out-of-castle "prisoners of war", and many are not even accurate figures measured by hearsay.
Indeed, the "killings" at Han Chung Gate and Ku Ling Temple itself are consistent with the fact that the "killings" took place as claimed by Bates.
Judging from the Diary of Mataichi Iye, the killing of Ku Ling Temple did not take place during the registration of the 26th to 28th.
The body of a Chinese soldier in Han Chung Gate, judging from Orita Mamoru's diary, has nothing to do with the case inside the castle.
The killing of Kajitani Kenro includes the defeated soldiers outside the castle as well as the 17th.
As a result, the information is different from that claimed by the International Safety Commission.
I don't know how many people were actually "killed".
I "imagine" that probably about 5,000 people, including soldiers and non-combatants, were killed. I'd put the ratio at 99:1.

The interpretation of international law as the basis for determining whether the "killing" of a "prisoner of war" is a "violation" of "international law" is discussed next.
As a preface, it is clear that "killing a prisoner of war" is not a [crime], a violation of international law.
Americans may not be as aware of the importance of taking off this military uniform.
Even in Japan, if you do not know [the laws of land warfare], there are people who cannot understand.
The act of wearing a military uniform due to combat is set forth as a [duty] in the laws of land warfare.
Reprinted from the homepage of the International Committee of the Red Cross, as it was not mentioned in the English version of Wikipedia's Hague Land Warfare Convention.
ICRC（International Committee of the Red Cross）
https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/195-200011?OpenDocument

Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

Article 1.[The laws, rights, and duties] In (2).
2. To have a fixed distinctive emblem recognizable at a distance;
That is, [military uniforms].
This provision is a measure to separate non-combatants from combatants and to ensure that non-combatants are not harmed by combat.
Both sides of the engagement believe that the goal is to protect non-combatants and protect the human rights of soldiers.
It is based on the "principle of separation of soldiers and non-combatants".

Art. 3. The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.
In Art.3, the POW [prisoners of war] would be said to have [rights].
In other words, Article 1-2 and Article 3 together mean that combatants are obligated to wear uniforms and have no [right] to become [POW] if they join a battle while not wearing them.
At that time, Westerners who were in the safe zone of Nanjing, mostly missionaries, businessmen, and media, did not know international law, the laws of war.
The only perception they would have would be that "killing a POW" would be at most a "violation of international law".
Or, they may have been more simply aware that "killing" is a "criminal act". [a peaceful daily life] is the standard.
Combat also includes "Military Logistics". Even if a soldier does not attack, he is a target of attack by enemy forces.
Even civilians can be targeted for attack if they participate in [Military Logistics]. That action is a very dangerous action in which a prisoner of war has no right to act.
There is a degree to which the Japanese military adds humanitarian considerations. Not everything is forgiven.
While "non-combatants" and "POWs" should be treated humanely, "prisoners of war" have "rights" of course, but they also have "obligations.
Non-combatants" and "POWs" are not "honored guests".
In battle the victory of the army takes precedence. The safety of the armed forces after a battle takes precedence.
Non-combatants" must not be involved in combat operations, and "prisoners of war" are obligated to obey the laws and orders of the capturing country at all times.
Rebellion and flight could result in being stripped of "prisoner of war" status and killed as a hostile action.
The following is a commentary by Henry Halleck, who is also an international jurist and American soldier.
The custom of killing prisoners of war has been going of among civilized nations today.
However, the rights themselves still reside with the captors. Even today, the military may "kill" if absolutely necessary.
...Self-security is the first law of engagement of the victor, and it is recognized by the laws of engagement to take whatever measures are necessary for this purpose. Just do not allow various harsh measures beyond what is necessary.
Therefore, the military should not decide on "killings" lightly, judging the surrounding circumstances on a case-by-case basis to determine whether the "killings" means are absolutely necessary or not.

Japanese diplomat and international jurist Shinobu Junpei responded to this as a case of special circumstances.
For example, under normal circumstances, the military released prisoners of war under oath when they were unable to hold or control them.
However, if they break their oath and then decide that it is very likely that they will attack, the laws of engagement allow them to "kill" the "prisoners of war" if they have no other choice.
If there is absolutely no other way to measure the safety of the military than to "kill" it, it does not constitute a violation of the laws of engagement.
For the Japanese military, the "killing" of Chinese soldiers and suspects (including non-combatants) who had repeatedly engaged in [uniforms in combat], which was a violation of the laws of land warfare, for lack of "credibility and reliability", was "ad hoc" from "international law" and was the only option.
However, some international legal scholars may still consider it "illegal" because it is an extremely delicate decision.
For example, former diplomat and international law scholar Shikama Rikio said at a symposium...
A general in the army whose commander has escaped, as well as a regular army soldier who has taken off his uniform and wear the same civilian clothes and disguising themselves as civilians has the right to be a prisoner of war, as long as he does not actually commit hostilities.
However, it is unclear what Mr. Shikima actually intended to say.
Judging from the text, the problem with the statement is
It is unclear what "hostilities" are.
It would be ignoring the principle of separation of military and civilian life.
Affirming casual wear would be a threat to the safety of civilians in combat in an enemy country.
The above is clearly a problematic interpretation.
Although not a scholar of international law, historian Harat Takeshi, who is not a scholar of international law, argues that the capture of prisoners of war or prisoners of war or prisoners of war who are captured on the battlefield, disarmed and brought under one's control, and then taken to the Yangtze River Bank or elsewhere to be shot or stabbed to death, cannot be considered an act of combat as an extension of combat.
It is illegal for front-line troops to take out and kill prisoners of war who are at peace under their control, unless the prisoners of war have escaped or mutinied, in which case it is illegal for them to be killed.
The front-line units that captured prisoners of war do not have the authority to execute them, but if they are prisoners of war, they should be executed by a court-martial established above the division.
This theory is based on the arguments of Ikuhiko Hata and other historians.
He was involved in the compilation of Kaikosha's "History of the Battle of Nanking" and was the one who [defined] [Gyakusatu(=massacare)] as a violation of the [law of] land warfare.
Thereafter, his theory becomes the mainstream claim of historians and historical societies.
However, whether he really understood international law is another thing.
As mentioned earlier, Kaikosha's "History of the Battle of Nanking" has a commentary by Shinobu Junpei and Henry Halleck.
Mr. Hara's statement that "the first line of defense does not have the authority to execute prisoners of war" could lead to the perception that priority should be given to the treatment of "prisoners of war," even if the entire military operation is ignored, which could lead to the failure to conduct combat and operations.
It means that he does not understand the reality of combat operations and the international law of warfare.
A close position of Shunpeyi Shinobu on international law is as follows.
The international law scholar Sato Kazuo interprets it as follows.
Article 5 of the Third Geneva Convention (Convention on the Treatment of Prisoners of War) of 1949, which greatly improved and expanded the 1929 Prisoners of War Convention, states that "This Convention does not provide for the treatment of persons listed in Article 4 [who are entitled to prisoner of war treatment] to be released and repatriated until they are finally released and repatriated from the time they fall into the hands of the enemy. If there is any doubt as to whether or not a person who has fallen into the hands of a daredevil in an act of warfare belongs to one of the categories listed in Article 4, he shall enjoy the protection of the present Convention until his status is determined by a competent court.
The 1949 POW Convention represents a dramatic improvement over the international laws on prisoners of war of the 1920s and 1930s and, of course, does not directly affect the relevant issues at the time of the Sino-Japanese War, but at least as many of the "persons who have fallen into the hands of the enemy" found in Article 5 on the right as "persons who have fallen into the power of the enemy It is noteworthy in that it suggests that not all prisoners of war are "prisoners of war" (i.e., those guaranteed by the capturing country to be treated as prisoners of war under international law).

The international law scholar Ryoichi Taoka has the following interpretation.
The law of war, however, is established on the basis of a certain balance between military necessity and humanitarian needs. If the pro-war advocates say that the laws of war can and must be obeyed under normal circumstances, but when there is a strong military necessity, this military necessity takes precedence over the laws of war, then they are not fundamentally wrong when they try to express this fact. However, they chose the wrong foundation when they tried to find support for their theory in the theory of emergency rights. However, they chose the wrong foundation in seeking support for their theory in the theory of emergency rights, and as mentioned before, the notion of emergency rights is pre-existing in the law of war, and it is not only a theoretical fallacy to allow this law to be further violated on the basis of emergency rights, but also a theoretical error. As a result of this basis, it is not stated that it is up to the interpretation of individual laws and regulations to determine when a belligerent is released from the restraints of the laws of war based on grave military necessity, but rather a general, vague statement is made that the laws of war are generally broken by military necessity. Under such a general expression, this is a theory in danger of being abused. The theory of denial of the number of battles is opposed to the wrongly founded and misrepresented theory of the number of battles, and it does not try to deny that strong military necessity can destroy the validity of the laws of war. It is clear from their interpretation of the "law of war" (p. 5). Thus, their inner notion was correct in nature, but they erred in expressing this notion by advocating that "all laws and regulations of war have absolute force that cannot be broken by military necessity, except those that the laws themselves explicitly permit. Even when a statute does not contain a "military necessity clause," it is often not validated by military necessity, as their own writings on the laws of war attest to this.
In short, inadvertent wording has made both theories misleading, for if "the laws of war are built on a foundation that takes into account only military necessities that normally arise in wartime, the occurrence of greater military necessities may in fact make compliance with the laws impossible. arise. In this case, the laws and regulations lose their power to bind the belligerents. If this is expressed in the words, "The specific circumstances in which this is the case will have to be determined as a matter of interpretation of individual laws and regulations," then I think that I must agree with this theory, even for those scholars who have rejected the war number theory. In this sense, I think that the number of battles should be affirmed.

I have introduced some interpretations of international law from wartime international law by several international jurists, but I have not found any quotes from international law scholars who have developed the logic that "the first line of defense that captured the POWs has no authority to execute them," as claimed by the Historical Society.

International wartime law has a history of being built up more in line with the realities of combat than with ideals, and has not become a "law" that limits the actions of the military as much as it is today.
However, many historians unfamiliar with international law still cling to Hara's ridiculous "theory" that the front line does not have the authority to execute prisoners of war.
In the 1920s and 1930s, the American Society of International Law was of the opinion that international law in wartime should be revised to review the fundamental principles of international law in order to focus on the prevention of war, in light of the fact that its effectiveness could not be achieved due to the difficulty of distinguishing between non-combatants due to changes in tactics and combat techniques during the First World War.
Since the direction was to repeal the War Powers Act itself, it could be considered an idealistic, reality-defying line.
However, Secretary of State Stimson's use of such an argument certainly brought it into the mainstream of American international law logic.
However, it is only for the United States.
Japan, from a conventional and pragmatic point of view, decided that the independence of nations would not disappear, nor would war (acts of combat).
For this reason, the idea was that the international law of warfare should be developed and developed.
Today, the international law of war is virtually unknown and has become obsolete. Although the opinion of the United States, which was the leading victor in World War II, has become the dominant opinion, war (combat activities) has not disappeared even today. The independence of the nation is also preserved.
There are some states that ignore the international order with impunity.
And there are also terrorist organizations, which are beyond the framework of the state.
It turns out that the realistic view of the Japanese side was not wrong.
The United States, which was supposedly on its way to repealing the laws of war, took the Japanese military or the Japanese government to military tribunals after the war and executed them for [war crimes].
The legal basis for this was, after all, [international law of war].
However, it was problematic to have it applied without regard to some of the legal obligations and "fundamentals of the law".
Later, with the launch of the United Nations, the "prohibition of war" came into effect. And the "International Law of War" was practically abolished.
Perhaps this is why the tragic situation of "indiscriminate combat without legal restrictions" was created after the war.
More tragically, any "death" of one's own troops due to operational action, whether in self-defense combat or in regional security combat, as in the French military's "Uzbin Incident of 2008," was a criminal case brought by the bereaved families of their own troops, not the enemy state or enemy groups. This would prevent even self-defense combat or security operations operations from being conducted. Eventually, France passed a bill to prevent criminal trials for special circumstances in military operations.
This could be one of the manifestations of the "confusion" that emerges from the contradictions of post-war "international law".
It is a tragic situation born of idealism that ignores reality.

In the world, and even in Japan today, international wartime law is hardly known. And even today, the tragedy of ignorance is spreading due to the promotion of too much idealism.
I believe that this has led to the prevalence of "Why did you do that? That’s terrible/awful…!" claims about the actions of the Japanese military in 1937, both in the world and in Japan.
Calling the killing of POWs in the Nanjing Incident a "massacre" is nothing more than a "misunderstanding" and "prejudice" resulting from the ignorance and lack of understanding of "international wartime law" by the postwar international community and Japan.

In this article, I have described the "killing" of civilians misidentified as the "killing" of a defeated soldier in and out of uniform, from the perspective of international law.
Thank you for reading this far.

Next, I would like to discuss [4. "Killing" of "prisoners of war" outside the castle, such as at Mufu Mountain, Yuhuatai, Maqun.], which overlaps with this article.