Ethical Lessons of the Failure to Bring the Japanese Doctors' to Justice

- - Michael Thomas,
Law Student, University of Otago, New Zealand

E-mail: mt6767@hotmail.com

Eubios Journal of Asian and International Bioethics 13 (2003), 104-6.


From 1932 until the allied victory in August 1945, leading Japanese scientists and doctors performed inhumane biological warfare experiments on humans, under the direction of General Ishii Shiro. With the allied victory came the hope of justice for thousands of Chinese, Korean, Russian and Manchurian people. But justice has never been done. General Ishii and the majority of his men have to this day never been seriously (my emphasis) brought to account and take responsibility for their actions by the Chinese government (1). The following essay focuses on the failure to bring those Japanese doctors to trial and then highlights the wider implications and consequences of this failure. I begin by presenting a common justification given for the human experimentation, the 'war argument' in its strongest light and then showing that this argument is weak, if not invalid.

Some people argue that because the human experimentation occurred during wartime, it is no different to the thousands of people that die during a war, defending their own country. If the people are going to die anyway, then why not use them as experimental subjects for biological warfare research? This argument is given as a justification or excuse or rationale for human experimentation. For example, a Japanese government official said that atrocities "occurred during the most extraordinary wartime circumstances"( 2, p.155). Even General Ishii's eldest daughter presents the argument in defence of her father "what he did, or was alleged to have committed in the line of duty as a medical officer and soldier in the imperial Japanese army, shall be denounced by any moral standard. Even so, one must not forget that it all happened under extremely abnormal circumstances. It was war (2, p.13)." Tsuchiya (2001) proposed, "that it was wartime" as the number one reason for explaining the possibility of the human experimentation (p.5). Tsuchiya stated that the "murders by human experiment were only one part (my emphasis added) of a huge massacre by the Japanese army (3, p5)."

Is the war argument a good one? I contend that the argument is weak. It is true that inevitably many people do die in war, but it does not logically follow that people must also die at the hands of "mad doctors." I believe there is something inherently wrong with the very way that those people died in the human experiments. Many people voluntarily join the armed forces of their country and are proud to fight and die in defence of their nation. But at the factories of death there was no pride involved. There was no choice for an individual as to whether s/he could chose to die for the advancement of biological warfare research. People were subject to experimentation against their will. Those people suffered at the hands of "mad doctors," not enemy soldiers. The human experiments were so inhumane that they were in breach even of the rules of war. An Australian judge acknowledged this in the Tokyo trial, May 1946. He said that the rules of war were "flagrantly disregarded" (4).

Not only were the Japanese doctors experiments crimes of war, the human experimentation performed by Japanese doctors were crimes against humanity. The doctors referred to the people subject to the experiments as 'maruta' that is Japanese for 'logs' (1, p.6) .The 'maruta' were given numbers and treated as 'experimental material' not as human beings. This stemmed from the attitude that those people experimented on, largely Chinese people, were from an inferior, sub-human race (1, p.6) I believe the doctors found it easier to detach themselves morally, by removing the human aspects of the people experimented on, effectively de-humanizing them. By treating the people as numbers and sub-human, the doctors could feel better able to justify, to themselves what they were doing. But in reality what they were doing was performing heinous crimes against fellow members of the human race.

The experiments breached both the relatively new Western concept of informed consent and the fundamental Japanese principle of Confucianism. Confucian values of "ren" (humanity) and "yi nai renshu" (medicine as an art of humanity) were breached (5, p.3 ). Recognising that the experiments were unethical is one lesson. Preventing future atrocities is the next step. I contend that the problem lies in the failure to achieve justice and the need to punish those breaches of humanity that threaten the very value of humanity itself. If as members in the human race we are not prepared to recognise and learn from our mistakes, as opposed to covering them up, then we are highly likely to meet similar atrocities in the future.

Although confronting those horrors of the past is "revealing and very painful"( 6, p45). it is a necessary first step in establishing a strong base for the future relations between the East-Asian nations involved, particularly China and Japan.

This need for justice raises two very important ethical questions. First, at what price do we sacrifice justice in the name of the "national interest"? In May 1946 the American Government through Douglas A. McArthur chose to ignore justice and grant General Ishii and his men full immunity from prosecution in exchange for information regarding unit 731 and the human experimentation ( 2, p157) The Americans were far behind the Soviets and the Japanese in biological warfare research and placed a high price on such information that "could not be obtained in our own laboratories because of scruples attached to human experimentation" (2, p. 263). It is a contentious ethical issue as to whether the information obtained from such experiments should be used at all by other nations.

Even if one accepts that the information gained by the Americans from the Japanese human experiments might as well be used for a good purpose rather than simply disposed of. One cannot escape the conclusion that the very people who conducted the experiments are literally, getting away with murder. The principle functions of the criminal law are to punish and deter. By protecting the doctors from prosecution, how can we be sure they will learn from their mistakes and deter future crimes of this nature? Justice must not only be done, it must be seen to be done.

Not only were the Japanese doctors never prosecuted, many were placed in positions of power at various universities and research facilities. For example, Dr Kozo Okamoto, a pathologist at Ping Fan who performed human vivisections became a professor at Kyoto University and medical director of a university in Osaka ( 4). Dr Hisato Yoshimura, in charge of frostbite experiments was later employed at a women's university and in 1978 was awarded one of Japan's highest honours "the order of the rising sun (4). The American government cannot justify the failure to bring the Japanese doctors to trial. We should be wary in future whenever the "national interest" is used to justify the immunity of those who are clearly guilty of such unethical experiments.

The other ethical question is: Why did the Chinese government remain silent over crimes committed against the very people it was meant to protect? Two possible reasons could account for this. First, the government had many other internal affairs to worry about, like the impending war in Korea. Justice was not therefore seen as a high priority at the time. Secondly, the communist government purported to care for the people, but in reality it didn't serve the people at all.

But if the government of the day was unable or too preoccupied to care, then this begs the question why has no subsequent government sought justice for its people? One possible reason the Chinese people have used to justify their silence, is their belief that the Japanese doctors were "devils" and therefore not bound nor subject to any prevailing moral standards (5, p5). I think this view obscures the reality. It neglects the fact that the experiments were real and they were performed by fellow human beings. One cannot forget that "these are people who would never kill another human being in the normal social context (2, p39). The doctors were not devils. They were real people who committed serious crimes in a very unethical environment. Ethically we can learn from this by seeing people who perform these experiments for who they are, criminals. Even in highly unethical situations, we should demand from individuals that they exercise their conscience and common sense.

My final point briefly addresses the following issue. After justice has been done, what is the next step in helping to prevent future atrocities? I agree with Rongxia Chen (7) when she states in her article that one reason why the Chinese and Japanese people have not learnt their lessons from the past atrocities is due to the 'lack of individual rights in the East-Asian ethical traditions.' A possible solution, or at a least starting point for East-Asian ethics can be found in the concept of "informed consent." Informed consent is the principle that emerged from the Nuremberg Code that originated from the conclusion of the Nazi trials. Informed consent protects individual autonomy by requiring a person to be fully informed and understand the nature of the specific procedure/experiment. Consent must be voluntarily obtained, under no pressure or coercion. Although some clam that informed consent is a Western concept, there are strong arguments presented that the concept is both applicable and compatible with many Chinese and East Asian values(8). For example a similar value exists in Confucianism that recognises the integrity of the body of an individual. So the idea of respect for the individual is not completely foreign to East-Asian values. East-Asian values also recognise "yi" which means justice. In practical terms a good starting point may be to raise the awareness of informed consent throughout East-Asia and the world.

In conclusion, I have explored only one angle of the many ethical lessons to be learnt from the failure to bring the Japanese doctors to trial. It is important that as human beings we are prepared to confront and learn from our past mistakes, so that we are better able to prevent future atrocities. I want to stress the importance of confronting past injustices between China and Japan for establishing a firm and harmonious base for future relations. Otherwise suppression of deep felt injustice and pain expressed by many Chinese people could incite lasting feelings of ill will and revenge towards the Japanese people. Crimes against humanity should be prosecuted and not excused or suppressed in furtherance of the "national interest." The war argument cannot stand against such crimes that are neither a necessity, nor an inevitable result of war. I conclude that developing globally a fledging concept like informed consent could help to minimize the chances of "mad medicine" in the future.

Acknowledgments

This essay is originally written for BITC 301 Introduction to Bioethics course I took at the University of Otago. I would like to thank Dr Jing-Bao Nie for his guidance and helpful advice in revising this essay)

Notes
1 Nie J-B. Japanese doctors' experimentation in wartime China. The Lancet Supplement Vol 360 Dec 2002 p6.
2 Harris SH. Factories of Death: Japanese biological warfare 1932-1945 and the American cover-up. London and New York: Routledge, Revised Edition 2002 p155.
3 Tsuchiya T. Why Japanese doctors performed human experiments in China 1933-1945. EJAIB 11 (2000), 179-80.
4 Unit 731 did the Emperor know? (video recording) London: TVS 1985.
5 Nie J-B. Challenges of Japanese Doctors' human experimentation in China for East-Asian and Chinese bioethics: Commentary on Tsuchiya. EJAIB 11 (2001), 5.
6 Doering O. Comments on Inhumanity in the Name of Medicine: Old Cases and New Voices for Responsible Medical Ethics from Japan and China. EJAIB 11 (2001), 45.
7 Chen R. Why bring up the past tragedy again? EJAIB 11 (2001), 107.
8 Discussed by Nie J-B. Is Informed Consent not Applicable in China? Intellectual Flaws of the "Cultural Difference Argument" in Formosan Journal of Medical Humanities Oct 2001, Vol 2 No.1&2.


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