Destructive Ambiguity
John Plowright
Legal language strives to be exact but the existence of lawyers’ fees testifies to the fact that precision is a counsel of perfection and that ambiguity persists despite the keenest efforts to eradicate it. The stakes can be very high when legal language permits rival interpretations, and in the case of Sir Roger Casement were a matter of life or death.
Casement was an Irish nationalist who in 1916 was tried for treason under the terms of the 1351 Act which in modern textbooks stated that the crime of treason had been committed, “if a Man do levy War against our Lord the King in his Realm, or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere …”. These words are a translation of the original Norman French.
Casement’s defence hinged upon the claim that the original statute’s definition of treason had no modifying comma, indeed no punctuation at all, and that properly understood, the crime of treason could only be committed in the King’s realm despite the fact that the acts alleged might, as in Casement’s case (trying to persuade Irish POWs in Germany to join what became the Easter Rising), have been committed outside the realm. This interpretation was denied at the original trial and on appeal, and Casement was hanged but not before he had complained about a state of affairs which allowed a man’s life to “hang … upon a comma.”
The Treason Act
However, the ambiguity which cost most lives was not that attached to the 1351 Treason Act or to Raglan’s instructions to Lucan which helped to precipitate the ill-fated Charge of the Light Brigade at Balaclava in 1854. Rather that unhappy distinction belongs to mokusatsu: the Japanese response to the Potsdam Declaration.
By the time the Allies met at Potsdam in July-August 1945, it was clear to any rational observer that Japan’s defeat was only a matter of time. The Japanese were being pushed back on all fronts, albeit at enormous cost, and the United States had established command of the air over the Japanese home islands. Unbeknownst to the Japanese their situation was even more parlous as Stalin had promised to enter the Pacific War three months after the defeat of Nazi Germany, and on 16 July, one day before the Potsdam Conference opened, the Americans had successfully tested the first atomic bomb at Alamogordo in the New Mexico Desert.
The Potsdam Declaration, issued by the USA, Great Britain and China called “upon the government of Japan to proclaim now the unconditional surrender of all Japanese armed forces, and to provide proper and adequate assurances of their good faith in such action. The alternative for Japan is prompt and utter destruction.” By not mentioning the Emperor in the entire document the Allies sought to signal to Japan that he might be allowed to remain in place despite the demand for unconditional surrender.
However, this proved insufficient to enable the peace party within Japan’s government to persuade the war party, centred around War Minister General Korechika Anami, to explore the possibility of peace more vigorously or openly. Indeed, such was the fine balance between the two sides that resort was had to mokusatsu as Japan’s official response to the Declaration.
Unfortunately, mokusatsu has no exact equivalent in the English language. For the peace party it may have meant ‘to withhold comment’ whilst still signifying the possibility that the door remained open for some more positive pronouncement once more time had been given for deliberation, whilst for the war party mokusatsu suggested the silence arising from a slammed door. Japan’s propaganda agencies strengthened this interpretation by the Allies by translating the word into English as “ignoring”.
One rendering of mokusatsu is ‘to kill with silence’. Another is ‘to treat with silent contempt’. It is a tumbleweed moment type of word: it abruptly ends one line of discourse without indicating precisely how, if at all, it will be resumed. There are very many reasons why the war with Japan might well not have been brought to an end until after Hiroshima, the Soviet entry into the Pacific War and Nagasaki, but had Prime Minister Suzuki authorised the use of a better word than mokusatsu to summarise Imperial Japan’s response to the Potsdam Declaration, or had the Allies been better able to tease out in translation the word’s nuances and been more receptive to its range of meaning, then it’s just possible that tens of thousands of lives might have been saved.